European Court to rule on Christian discrimination cases - Christian Concern

European Court to rule on Christian discrimination cases

Published: June 6th, 2011 In a significant legal development, the European Court of Human Rights (ECHR) has requested that the British Government state whether they believe that the rights of Christians have been infringed in recent cases where individuals have been penalised for expressing their faith in the workplace.
The request has come because legal action is being taken by four Christians who argue that their rights have been infringed.
The four Christians are: Gary McFarlane, a counsellor who was sacked by a counselling service for saying that he would not give sex therapy to homosexual couples; Shirley Chaplin, a nurse who was banned from working on hospital wards for wearing a cross around her neck; Nadia Eweida, a British Airways employee who was prevented from wearing a cross; and Lillian Ladele, who was disciplined by Islington council for refusing to conduct civil partnership ceremonies for homosexual couples.
The Christian Legal Centre is representing Shirley Chaplin and Gary McFarlane.
The cases have been viewed by the European Court as being of such importance that they merit further investigation. Once British Government ministers have responded the Court will decide whether to hold further hearings. Many will be watching these developments closely, as the number of Christian discrimination cases in the UK appears to be continuing to rise.
It is hoped that the consideration of these cases will provide greater clarity as to how freedom of conscience for Christians can be preserved when it comes into conflict with UK ‘equality’ laws.
Earlier in the year, the ECHR ruled that crosses were allowed to be displayed on classroom walls after a case from Italy was heard. This decision appeared out of step with how British courts had ruled on the four cases, which were all lost on appeal.
Speaking to The Sunday Telegraph, Andrea Minichiello Williams, CEO of the Christian Legal Centre, said:
"These cases are massively significant.
"There seems to be a disproportionate animosity towards the Christian faith and the workings of the courts in the UK has led to deep injustice.
"If we are successful in Strasbourg I hope that the Equalities Act and other diversity legislation will be overturned or overhauled so that Christians are free to work and act in accordance with their conscience.
"People with orthodox views on sexual ethics are excluded from employment because they don't fit in with the equalities and diversity agenda. It is this which we want to see addressed. Such injustice cannot be allowed to continue."

Lean Years Ahead in the Middle East

What is going on in the Middle East involves a tangled mess of intersecting factors.  There is no single explanation for the unrest.

Factors include demographics, failing economic policies, oppressive regimes, radical religion, and food.  David Goldman (who writes in the Asia Times under the name of Spengler) first drew my attention to the food issue.  His latest writing on this, The Hunger to Come in Egypt makes very sobering reading indeed.

The problem of food is not only in Egypt - it will 'bite' elsewhere in the Middle East where there are not huge oil revenues.

Why is there a food issue?  To put it in a nutshell, the rise and rise of the Asian middle classe has put dramatic upward pressure on global food prices, especially during times of shortage.  Greater competition for the available grain resources, combined with growing meat consumption (animals eat the grain which otherwise might be destined for human consumption) as well as grain for ethanol exchange is causing widely global fluctuating grain prices.  Poor people simply cannot afford the price of grain when the prices spike.  I have collected here some statistics which provide something of the background to this.

First, we can note that the Middle East is in the peak of a population boom, with vast numbers of mouths to feed, especially among the cohort of young adults.  At the same time, in the Middle East, youth unemployment is the worst in the world:

Unemployment rates for youth International Labour Organization (ILO),

Global Employment Trends for Youth (Geneva: ILO, 2006): Annex 1.

(MENA = "Middle East and North Africa")

The next graphic shows how, over 50 years, North Africa and the Middle East have taken up a steadily increasing share of world wheat imports, until over the the past decade their share has hovered around one third of the global total.  The other big block of wheat importing nations — and the Middle East's main competitor for grain supplies – is South, East and South East Asia, where vast wealth has been accumulating during the Asian economic boom.

  

This next table shows the changes from 2004 to 2009 in the ranking of top wheat importers.  Middle Eastern countries went from being 2 of the top ten importers to 5 of the top ten.  Notice the top wheat importer in 2009 was Egypt!  Where does the money come from to pay for all that wheat?  Since January 2011, not from tourism revenues.

2004	2009
1. China	1. Egypt
2. Japan	2. Iran
3. Italy	3. Brazil
4. Algeria	4. Algeria
5. Brazil	5. Japan
6. Indonesia	6. Indonesia
7. Spain	7. Morocco
8. Egypt	8. Iraq
9. Mexico	9. Nigeria
10. South Korea	10. Turkey

This next chart shows the price of wheat in recent years.  We are just now in another spike in prices. 

What happens if you live on under $2 a day, the global price of grain more than doubles, your national currency collapses, tourism revenues dry up and the local economy fails?  People starve.  A lot of people get badly hurt in the scramble for food and the inevitable recriminations as desperate people and political opportunists look for scapegoats.  You also could see a lot of starving people trying to make their way across the Mediterranean in leaky boats.

Goldman writes:

"Revolutions don't only kill their children. They kill a great many ordinary people. The 1921 famine after the Russian civil war killed an estimated five million people, and casualties on the same scale are quite possible in Egypt as well. Half of Egyptians live on $2 a day, and that $2 is about to collapse along with the national currency, and the result will be a catastrophe of, well, biblical proportions."

Response to Angus McLeay on the 'inherent requirements' test

It is disappointing to see name-calling and misrepresentation in McLeay's recent article "HOT POTATO': Religious Freedom, the Victorian Equal Opportunity Act and the Inherent Requirements Test".

Using emotionally charged terms such as 'strident', 'lobbies' and 'unChristian', he claims for himself the moral high ground while regarding it as a virtue that in doing so he will win favour in the eyes of some non-Christians.  But at the same time he misrepresents and vilifies fellow-Christians who disagree with him.  For example:

1. It is not true to claim that religious groups have opposed the removal of the right to discriminate on the grounds of disability.  I know of no Christian group who put such an argument forward.

2. It is a gross exaggeration to claim that "Those who opposed the recent changes claim that the true motivation for updating the Act was simply to harass Christians and enforce radical secularism".  Some may take that view, but to attribute it to all opponents of the Act is to promote a falsehood.  For example, I am someone who has vigorously opposed some specific feature of the new Act, and believe that it WILL encourage a climate in which secularism is enforced, do not and have not claimed that such an outcome is the 'true motivation' of the Act.  I would acknowledge that even many of those who would wish, for example, that Christian schools should not be able to make faith a criterion when employing teachers of secular subjects are "motivated by ideals of dignity and a fair go for all".  But I disagree with their conclusions in pursuing that agenda, and also with their assumptions about what constitutes a fair go.

3.  It is also misrepresentation to claim that "the campaign against changes to the old Act would rather us not be upfront about why staff in Christian organisations need a faith-based foundation for their roles". As a counter example, the argument against the "inherent requirements" test, which the Anglican Diocese put in 2009 to the former Labor government when it was revising the old Act, was that a "genuineness" test was better suited to the need for transparency.  In making this proposal, there was absolutely no desire that Christians not be upfront about the grounds for appointing people.  The genuineness test, if accepted, would have encouraged both transparency and accountability.

4. It is not true to claim that opposition to the inherent requirements test is based upon an 'unsupported and wild assumption' about how it would apply. For example, the Anglican Diocese's submission opposed this test based upon a legal opinion prepared by a senior barrister (who soon after was appointed to the supreme court of Victoria). This opinion considered in detail how the 'inherent requirements' test has been applied in other legal contexts.  The opinion pointed out multiple problems with this section of the act. One issue was ceding to a secular tribunal the right to decide which jobs within a religious organisation legitimately (in its view) require some sort of religious adherence or moral/ethical standard over and above the mere functional capacity to perform the job. 

5. McLeay asserts that "if a maths teacher in a Christian school is required to share the faith of the school community, that would be stated upfront and there would be some reasonable justification."  Is this not a wildy naive assertion?  For, on the contrary, submissions by mainstream representative secular bodies to the Victorian parliament's review of the law in 2009 argued for an 'inherent requirements test' because they maintained it would mean quite the opposite, namely that the faith justification would NO LONGER be accepted for a position such as a maths teacher. And they backed the new law for this very reason, and oppose the recently proposed amendments also for this reason.  I deplore the fact that McLeay flies in the face of clear evidence, to embrace limitless optimism.  I also deplore the fact that, buoyed up by such naivety, and citing not even a shred of legal analysis to back his view, he vilifies those who disagree with him as 'unchristian', simply because he is aware of non-Christians who think the worst of them.

In a strange kind of fear-driven logic, McLeay's plight is that his heart leads his head.  His heart fears that non-Christian people will think ill of him, and especially of his gospel.  So his head appeals to this sceptical audience by denigrating other Christians, as if shouting out: 'Look at me, I am not a bad Christian like those other people.'

A better way is to stick to the issues and argue them clearly and simply.

Was Jesus an Equal Opportunity Employer?

In the March 2011 edition of TMA (The Melbourne Anglican), Dr Muriel Porter published a piece (see here) arguing against further review of Victoria's anti-discrimination laws.   TMA also published an opposing view written by me (see here).  There was quite a lot of ground covered by Dr Porter's piece, and I wanted to expand on a few points, as well as give her theological argument the greater attention it deserved, hence this blog post.

Dr Porter was concerned that 'religious groups who claim to speak in Jesus' name have prevailed on the new Victorian government to give churches virtual carte blanche to discriminate against those they deem not acceptable.'

There are multiple errors and confusions in Ms Porter's piece.

1. It is simplistic to presuppose that the Equal Opportunity Act 2010 prevents churches from discriminating in employment.  In fact the recently introduced Act allows religious groups to discriminate under certain circumstances on the basis of:
        "a person's religious belief or activity, sex,
       sexual orientation, lawful sexual activity,
       marital status, parental status or gender
       identity by a religious body"
   It is a fact that the Catholic Archdiocese ended up supporting the changes introduced by the former Brumby government, precisely because it believed it would be able to continue to discriminate when employing people. Of course, there are others in the community who hope that the 2010 Act imposes severe restrictions on churches' ability to discriminate.  I would say that, unless the law is changed, we are going to be in for some very interesting and intensely fought legal cases.
2. Dr Porter cites Rachel Ball who had commented that "religion is not an automatic, pre-determined trump."  In reality, Attorney-General Robert Clark had only proposed to redraw the lines determining how religious exemptions apply.  Religion was never a trump even under the pre-existing law, which preceded the 2010 Act, as a recent VCAT case showed.
3. Dr Porter cites Ball's argument that "church leaders would be rightly distressed if a secular organisation sought to discriminate against a Christian employee on the grounds that they did not want a believer in their workforce’.  This is an invalid comparison.  Religious organizations understandably want to be able to take into account religious considerations when selecting employees, just as a political party in Victoria will want to take an employee’s political views into account; a bank would wish to take into account someone’s views on banking; a pub would wish to take into account someone’s attitudes on the comsupmtion of  alcohol; and an Aboriginal support group may wish to take into account someone’s attitudes to aboriginality. 
4. Dr Porter is mistaken when she claims that 'No one is suggesting' that churches should not have full control over who they appoint as 'overtly religious leaders'.  In fact the Human Rights Law Resource Centre (the organisation of Rachel Ball, who Dr Porter cites with approval) argued for that all exemptions should be removed from the Act (including the rights of churches in employing clergy).

Dr Porter writes:

“... who can occupy the many and varied secular roles within our large and diverse organisations should reflect the openness and loving acceptance of our Lord as far as possible. Our employment practices should clearly reflect our faith stance that all human beings are made in the image of God and deserve the fullest dignity.”

I am troubled by Dr Porter's conviction that a clear distinction exists between 'religious' and 'secular' roles in Christian organisations.  The person who cares for the gardens of our church does not see her role as 'secular', nor do many Christians working in teachers in Christian schools.  This distinction harks back to the old-fashioned idea that roles for clergy are religious, while roles for laity are not.

The contrast between sacred and secular is an important theological and social distinction, but it is a poor thing indeed to be inviting the state to impose its understanding of the distinction upon our institutions.  It is unwise to invite the state to rule that a great many positions in our institutions, founded and sustained for Christian purposes, are 'secular' and could therefore be filled by people of any faith or none at all.

However, my greatest concern about Dr Porter's argument is her appropriation of Jesus.   Yes, one must agree that Jesus opposed as a sin the exclusion of people by religious figures, as Miroslav Volf explains in Exclusion and Embrace (p.72):

"An advantage of conceiving sin as the practice of exclusion is that it names as sin what often passes as virtue, especially in religious circles.  In the Palestine of Jesus' day, 'sinners' were not simply 'the wicked' who were therefore religiously bankrupt, but also social outcasts, people who practiced despised trades, Gentiles and Samaritans, those who failed to keep the Law as interpreted by a particular sect.  A 'righteous' person had to separate herself from the latter; their presence defiled because they were defiled. Jesus' table fellowship with 'tax collectors and sinners', a fellowship that indisputably belonged to the central features of his ministry, offset this conception of sin.    Since he who was innocent, sinless, and fully within God's camp transgressed social boundaries that excluded the outcasts, these boundaries themselves were evil, sinful, and outside God's will.  By embracing the 'outcast,' Jesus underscored the 'sinfulness' of the persons and systems that cast them out."

But, as Volf goes on to explain (p.73), Jesus was no 'prophet of "inclusion", for whom the chief virtue was acceptance and the cardinal vice intolerance':

"It would be a mistake, however, to conclude from Jesus' compassion toward those who transgressed social boundaries that his mission was merely to demask the mechanisms that created 'sinners' by falsely ascribing sinfulness to those who were considered socially unacceptable.  He was no prophet of 'inclusion' for whom the chief virtue was acceptance and the cardinal vice intolerance.  Instead, he was the bringer of 'grace,' who not only scandalously included 'anyone' in the fellowship of 'open commensality' (Crossan), but made the 'intolerant' demand of repentance and the 'condescending' offer of forgiveness.  The mission of Jesus consisted not simply in re-naming the behavior that was falsely labeled 'sinful' but also in re-making the people who have actually sinned or have suffered misfortune."

In these times, Christians in the West are being challenged to be more inclusive at the same time that they are being convicted – literally – of excluding others, a legal process which is gathering momentum in the UK.

A much-publicized recent example is that of Peter and Hazelmary Bull, whose Cornwall B&B was targeted by the Equality and Human Rights Commission because they would only hire out bedrooms to singles or married couples – and not to same-sex couples.  The Bulls were convicted of breaking the law and had to pay thousand of pounds in damages to Mr Steven Preddy and Mr Martyn Hall, who had been refused a bed for the night.  In an odd twist to this case, the taxpayer-funded Equality and Human Rights Commission recently initiated proceedings (subsequently withdrawn) to increase the damages paid by the Bulls, arguing that the courts should have given no consideration at all to the Bulls' Christian faith.  At the same time hotels advertising "gays only" are commonplace throughout Britain.

After targeting Christian hotels and B&Bs - by its own admission – and winning its case against the Bulls, the Equality Commission has said that, in the interests of 'objective balance' it will investigate these hotels to see if they too are in breach of the law.  The Equality Commission also recently apologized for implying that Christian foster parents could 'infect' children with their moral values.  (The senior Equality barrister who prepared the offending submission which used the word 'infect' was Koran Monagan QC,  the European female director of the International Lesbian and Gay Law Association.)

In a public environment which is increasingly hostile to Christian values, and indeed to Christians themselves as individuals, the Victorian 2010 Equal Opportunity Act is a potential tool in the hands of those who wish to ramp up such lawfare here in Victoria. It is naive to pretend otherwise.

Yes, Jesus opposed exclusion, but he did not offer inclusion without boundaries as its alternative.  It is profoundly unhelpful to compare those who have legitimate concerns about the Victorian law with the Pharisees of Jesus' day, and to say that Christians who have such concerns are guilty of "narrow-minded self-protection” who risk becoming “little more than a sect.”  Such rhetoric only serves to muddy the waters of public debate.

It matters greatly how Equal Opportunity laws are worded.  I am pleased that Christians have been expressing their concerns about this law, and I welcome the Ballieu Government's decision to reconsider the Equal Opportunity Act 2010. 

Anti-discrimination Law and the Inherent Requirements Test

This piece was published in the March 2011 edition of TMA (The Melbourne Anglican).

It is welcome news that the Ballieu government will review the controversial and ambiguous 'inherent requirements' test introduced in 2010 revisions to the Victorian Equal Opportunity Act. 

A litany of incensed but ill-informed commentary gushed forth in response to this announcement.

Anti-discrimination legislation defines attributes which it is unlawful to rely upon when providing services or offering employment.  For example, it is unlawful in Victoria to employ people on the basis of their race, gender or age.

All anti-discrimination laws allow exemptions. These allow an Aboriginal youth housing service to target its services both to Aboriginals and to younger people: it would otherwise be illegal to discriminate on the basis of race and age.  Without an exemption, a synagogue could not require its rabbi to be a Jew.

Everyone accepts the need for exemptions, but there is disagreement about how to provide them.  Part of the heat in the debate is that some see these laws as a mechanism to push people of faith, especially laypeople, back into their churches.

In July 2009 the Human Rights Law Resource Centre argued that all exemptions should be removed from the EO Act, including the rights of groups to employ religious leaders on the basis of their beliefs. They proposed instead that employers be made to apply on a case by case basis to VCAT for exemptions.

The rhetoric which claims that the Victorian government intends to give religious employers  an "an automatic, pre-determined trump", is drastically overblown. This fantastical claim was put out by Rachel Ball, of the very same Human Rights Law Resource Centre which demanded zero exemptions.

Even before the 2010 amendments, religions did not have an automatic trump, as a recent VCAT case showed, when Judge Felicity Hampel found against Philip Island Adventure Resort for rejecting a booking from a gay suicide prevention group.

The issue at hand is quite specific.  It is the recently introduced 'inherent requirements' test.  This test means that to gain the benefit on an exemption, a religious employer must be able to prove that conformity with the religion is part of the inherent requirements of a position.

This innovation was initially proposed by secular groups who wanted to make it illegal, for example, for Christian schools to make faith a criterion when employing teachers.

At present there are thousands of students in Victoria whose schools require all their teachers to adhere to a faith statement.  These schools would have to radically alter their ethos in order to survive after August, when the Brumby government revisions come into effect. 

Many other organisations will also be impacted. World Vision has long required senior management to endorse a doctrinal position.  But how can they argue that belief in Jesus Christ is an 'inherent requirement' of running a finance department? 

In reality the Brumby government's innovations will lead to much confusion and a good deal of protracted lawfare before Victorians even know how they apply.

The Anglican Standing Committee of General Synod made a well-considered submission on this issue in 2008.  It argued that an inherent requirements test was a poor option, because Christian organisations

1. 'seek to maintain their distinctive religious mission and to avoid loss of effectiveness, by employing people throughout the organisation who adhere to religious purposes and hold the religious beliefs of the organisation'; 
2. 'all action is done "to the glory of God"', and this 'makes it impossible to distinguish between specifically religious activities and other activities'; and 
3. 'the concept of Christian vocation is not limited to clergy or specific ministerial functions within the church, but it includes the work of lay people in whatever capacity they serve.'

There are better alternatives. Diocesan legal experts recommended to parliament in 2009 to define the religious exemption for employment in terms of a 'genuineness' test.  An exemption could then be claimed if done in good faith, in accordance with genuinely held beliefs.  This is no religious 'trump', but would be subject to scrutiny in a tribunal or court. 

As a student at an Anglican grammar school I was grateful that my principal made it his policy to employ Christians throughout the staff.  The character of the school was much better for it. 

Aggressive secularists would be only too glad to see Christian agencies go the way of the YWCA, which has abandoned its Christian identity. The threat to religious institutions in Victoria's EO laws is not that they will be compelled to employ adulterers or gays.  It is that they will have to secularise. 

Those who cite the example of Christ in this matter may recall that he befriended prostitutes and tax-collectors to call them to repentance.  It was the sick, he said, who needed the medicine he had on offer, not the well.   His mode of evangelism does not justify the inherent requirements employment test.

We should be encouraging the Ballieu Government as it seeks a better way to provide the needed religious exemption.