Opponents of gay marriage won't face discrimination, says Equality Commission

The advice, given to MPs today, also refutes suggestions that unwilling clergy might be forced by human rights law to marry same-sex couples.

The Equality and Human Rights Commission has dismissed claims that legalising same-sex marriage will lead to discrimination against people who continue to believe that marriage can only be between a man and a woman.  The advice, given to MPs today, also refutes suggestions that unwilling clergy might be forced by human rights law to marry same-sex couples. Any such attempt, it concludes, would be "extremely likely to fail."

Parliament is beginning its detailed consideration of the bill today.

Ever since the government announced its intention to change the law, opponents have argued that  people who take a more traditional view of marriage will face discrimination in the workplace, even potentially losing their jobs for expressing their beliefs.  

A letter organised last month on behalf of Catholic priests and bishops (more than a thousand signed it) compared the prospect to the situation their church faced after the Reformation, when Catholics were legally barred from holding many official positions. The move, the priests predicted, "will have many legal consequences, severely restricting the ability of Catholics to teach the truth about marriage in their schools, charitable institutions or places of worship. It is meaningless to argue that Catholics and others may still teach their beliefs about marriage in schools and other arenas if they are also expected to uphold the opposite view at the same time."

Similar fears have been expressed by other campaigners.  The Conservative MP Edward Leigh introduced a Ten Minute Rule bill at the end of January calling for explicit protection to be given to opponents of same-sex weddings in churches - by making the exclusively heterosexual view of marriage a "protected characteristic" under the 2010 Equality Act.  Without such protection, he warned, "Army and NHS chaplains who preach in favour of traditional marriage in their own churches on Sunday could find themselves in trouble," while "tens of thousands" of teachers could face disciplinary action.

Today's advice from the EHRC, written by a leading QC, suggests that these fears are misplaced. When it comes to religious ceremonies, it notes that "freedom to manifest religion or belief" is enshrined in the Human Rights Act, as well as in Article 9 of the European Convention.  The principle is not absolute, since a government can interfere with it in the wider public good, but in this case the government has said very clearly that it wishes to uphold the right of religious objection.  Churches and other religious bodies will be able to opt-in to performing same-sex marriages, but that will be entirely their choice.

The EHRC also sees "no reason why employees of all kinds will not remain free to express their views about same-sex marriage."  They, too, would enjoy the full protection of Article 9.  Furthermore, the Equality Act itself protects employees from direct and indirect discrimination, and also unfair dismissal, because of their religion or belief.  Employees should not be sanctioned for disagreeing with the new law, since it "would be unlawful for an employer to discipline or sack an employee for this. This is the case for all employees, whether in the public or private sector, including teachers and chaplains."  Nor would be anyone be required to promote same-sex marriage as part of their job.

The guidance concludes that there "is sufficient protection for individuals who hold the religious or philosophical belief that marriage should only be between a man and a woman."  The only exception the EHRC can see is that registrars might be required to officiate at same-sex weddings as part of their public duty: but as the recent case of Lillian Ladele showed, this is already true of civil partnership ceremonies.

Campaigners against the Bill will probably dismiss this advice as speculative.  Seemingly contradictory advice from the human rights lawyer Aidan O'Neill was publicised last month in the Telegraph. Nevertheless, such a clear statement from the EHRC is likely to carry weight, since it has a statutory duty to scrutinise legislation and to issue formal advice to employers. The advice on same-sex marriage comes on the day that the Commission also circulates new guidance on the wider question of the expression of religion and belief in the workplace, which it hopes will avoid conflict and costly court cases.  

It's also worth noting that Aidan Smith, who was demoted by Trafford Housing Trust after expressing an opinion about same-sex marriage on Facebook, won his case at the High Court last year

If there was a danger of over-zealous employers interpreting the new law as requiring staff to suppress their opposition to same-sex marriage, today's strong advice from the EHRC makes such a scenario much less likely.

An anti-gay marriage protest in France, on January 13. Photo: Getty
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Erdogan’s purge was too big and too organised to be a mere reaction to the failed coup

There is a specific word for the melancholy of Istanbul. The city is suffering a mighty bout of something like hüzün at the moment. 

Even at the worst of times Istanbul is a beautiful city, and the Bosphorus is a remarkable stretch of sea. Turks get very irritated if you call it a river. They are right. The Bosphorus has a life and energy that a river could never equal. Spend five minutes watching the Bosphorus and you can understand why Orhan Pamuk, Turkey’s Nobel laureate for literature, became fixated by it as he grew up, tracking the movements of the ocean-going vessels, the warships and the freighters as they steamed between Asia and Europe.

I went to an Ottoman palace on the Asian side of the Bosphorus, waiting to interview the former prime minister Ahmet Davu­toglu. He was pushed out of office two months ago by President Recep Tayyip Erdogan when he appeared to be too wedded to the clauses in the Turkish constitution which say that the prime minister is the head of government and the president is a ceremonial head of state. Erdogan was happy with that when he was prime minister. But now he’s president, he wants to change the constitution. If Erdogan can win the vote in parliament he will, in effect, be rubber-stamping the reality he has created since he became president. In the days since the attempted coup, no one has had any doubt about who is the power in the land.

 

City of melancholy

The view from the Ottoman palace was magnificent. Beneath a luscious, pine-shaded garden an oil tanker plied its way towards the Black Sea. Small ferries dodged across the sea lanes. It was not, I hasten to add, Davutoglu’s private residence. It had just been borrowed, for the backdrop. But it reminded a Turkish friend of something she had heard once from the AKP, Erdogan’s ruling party: that they would not rest until they were living in the apartments with balconies and gardens overlooking the Bosphorus that had always been the preserve of the secular elite they wanted to replace.

Pamuk also writes about hüzün, the melancholy that afflicts the citizens of Istanbul. It comes, he says, from the city’s history and its decline, the foghorns on the Bosphorus, from tumbledown walls that have been ruins since the fall of the Byzantine empire, unemployed men in tea houses, covered women waiting for buses that never come, pelting rain and dark evenings: the city’s whole fabric and all the lives within it. “My starting point,” Pamuk wrote, “was the emotion that a child might feel while looking through a steamy window.”

Istanbul is suffering a mighty bout of something like hüzün at the moment. In Pamuk’s work the citizens of Istanbul take a perverse pride in hüzün. No one in Istanbul, or elsewhere in Turkey, can draw comfort from what is happening now. Erdogan’s opponents wonder what kind of future they can have in his Turkey. I think I sensed it, too, in the triumphalist crowds of Erdogan supporters that have been gathering day after day since the coup was defeated.

 

Down with the generals

Erdogan’s opponents are not downcast because the coup failed; a big reason why it did was that it had no public support. Turks know way too much about the authoritarian ways of military rule to want it back. The melancholy is because Erdogan is using the coup to entrench himself even more deeply in power. The purge looks too far-reaching, too organised and too big to have been a quick reaction to the attempt on his power. Instead it seems to be a plan that was waiting to be used.

Turkey is a deeply unhappy country. It is hard to imagine now, but when the Arab uprisings happened in 2011 it seemed to be a model for the Middle East. It had elections and an economy that worked and grew. When I asked Davutoglu around that time whether there would be a new Ottoman sphere of influence for the 21st century, he smiled modestly, denied any such ambition and went on to explain that the 2011 uprisings were the true succession to the Ottoman empire. A century of European, and then American, domination was ending. It had been a false start in Middle Eastern history. Now it was back on track. The people of the region were deciding their futures, and perhaps Turkey would have a role, almost like a big brother.

Turkey’s position – straddling east and west, facing Europe and Asia – is the key to its history and its future. It could be, should be, a rock of stability in a desperately un­stable part of the world. But it isn’t, and that is a problem for all of us.

 

Contagion of war

The coup did not come out of a clear sky. Turkey was in deep crisis before the attempt was made. Part of the problem has come from Erdogan’s divisive policies. He has led the AKP to successive election victories since it first won in 2002. But the policies of his governments have not been inclusive. As long as his supporters are happy, the president seems unconcerned about the resentment and opposition he is generating on the other side of politics.

Perhaps that was inevitable. His mission, as a political Islamist, was to change the country, to end the power of secular elites, including the army, which had been dominant since Mustafa Kemal Atatürk created modern Turkey after the collapse of the Ottoman empire. And there is also the influence of chaos and war in the Middle East. Turkey has borders with Iraq and Syria, and is deeply involved in their wars. The borders do not stop the contagion of violence. Hundreds of people have died in the past year in bomb attacks in Turkish cities, some carried out by the jihadists of so-called Islamic State, and some sent by Kurdish separatists working under the PKK.

It is a horrible mix. Erdogan might be able to deal with it better if he had used the attempted coup to try to unite Turkey. All the parliamentary parties condemned it. But instead, he has turned the power of the state against his opponents. More rough times lie ahead.

Jeremy Bowen is the BBC’s Middle East editor. He tweets @bowenbbc

This article first appeared in the 28 July 2016 issue of the New Statesman, Summer Double Issue