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Published online by Cambridge University Press: 16 April 2008
Exemptions for religious groups from generally applicable laws are by no means unusual, especially in the field of discrimination law. However, exemptions from laws prohibiting discrimination on grounds of sexual orientation have proved particularly controversial. The legality of exemptions in regulations prohibiting discrimination on grounds of sexual orientation in the employment sphere has been the subject of judicial review and the scope of those exemptions has also been judicially examined. The extension to prohibit discrimination on grounds of sexual orientation in the provision of goods and services has proved controversial, and case law on the extent of the religious exemption included in the British regulations is awaited. In the meantime, a recent judicial review of the corresponding Northern Ireland regulations, which were enacted prior to the British regulations, may be illuminating.
1 See R Sandberg and N Doe, ‘Religious exemptions in discrimination law’ (2007) 66(2) Cambridge Law Journal 302–312.
2 R (Amicus MSF Section) v Secretary of State for Trade and Industry [2004] EWHC 860.
3 Reaney v Hereford Diocesan Board Of Finance [2007] ET judgment 17 July 2007 (Case No: 1602844/2006).
4 Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263.
5 Concern culminated in a letter written by Cardinal Cormac Murphy-O'Connor, the head of the Roman Catholic Church in England and Wales, to the Cabinet in January 2007, focusing specifically on the need for an exemption that would allow the Catholic Adoption Agencies lawfully to refuse to place children with homosexual couples.
6 Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, SR 2006/439.
7 Equality Act (Sexual Orientation) Regulations 2007, reg 14; Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, reg 16.
8 Compare this with the regulations prohibiting discrimination in relation to employment, where exemptions are addressed to ‘organised religions’: see Sex Discrimination Act 1975, s 19, and Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/1661, reg 7(3). The definition of an ‘organisation relating to religion or belief’ differs from that used in religious discrimination in two respects: the fifth purpose of such an organisation (‘to improve relations, to maintain good relations, between persons of different religions or beliefs’) is omitted and it is also stated that the section does not apply to educational organisations: compare Equality Act 2006, s 57.
9 This explains why the Roman Catholic objection to the regulations focused specifically on the need for an exemption for Catholic Adoption Agencies.
10 In January 2007, after the regulations had come into effect, opposition peer Lord Morrow moved a debate in the House of Lords, (unsuccessfully) praying that they be annulled: House of Lords Hansard, 9 Jan 2007: Column 179.
11 Namely: the Christian Institute, the Reformed Presbyterian Church in Ireland, the Congregational Union of Ireland, the Evangelical Presbyterian Church of Ireland, the Association of Baptist Churches in Ireland, the Fellowship of Independent Methodist Churches and Christian Camping International (UK) Limited.
12 The Christian Institute, Re Application for Judicial Review [2007] NIQB 66.
13 Cabinet Office, Code of Practice on Consultation (January 2004).
14 In pursuance of the Labour Party's manifesto pledge; see Labour Party Manifesto 2005, Britain: forward not back, p 112.
15 [2007] NIQB 66 at para 34.
16 Council Directive 2000/78/EC (27 November 2000).
17 House of Lords and House of Commons Joint Committee on Human Rights, ‘Legislative Scrutiny: Sexual Orientation Regulations’ (sixth report of Session 2006–2007), 26 February 2007, para 57.
18 [2007] NIQB 66 at para 64.
19 Since the orthodox Christian belief that the practice of homosexuality is sinful ‘is a long established part of the belief system of the world's major religions’ and ‘is not a belief that is unworthy of recognition’ (at para 50).
20 This generous interpretation of Article 9(1) goes right against the trend of the recent cases concerning religious dress and symbols in England and Wales: see M Hill and R Sandberg, ‘Is nothing sacred? Clashing symbols in a secular world’ (2007) Public Law 488–506 and R Sandberg, ‘Controversial recent claims to religious liberty’ (2008) Law Quarterly Review (forthcoming).
21 Ontario Human Rights Commission v Brockie [2002] 22 DLR (4th) 174.
22 [2007] NIQB 66 at para 88.
23 Most notably laws prohibiting discrimination in the employment sphere, including the Employment Equality (Sex Discrimination) Regulations 2005, SI 2005/2467. It is notable that the harassment charge in Reaney v Hereford Diocesan Board of Finance was unsuccessful.
24 Strasbourg institutions recognise what may be styled the ‘specific situation rule’: where the claimant has voluntary submitted to a voluntary system of rules, this ‘specific situation’ may limit the right that they would otherwise enjoy under Article 9. Recent cases in England and Wales seem to have extended the application of this rule: see note 20 above.