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
Belief, disbelief and beyond belief
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Jeremy Corbyn's fans must learn the art of compromise

On both sides of the Atlantic, democracy is threatened by a post-truth world. 

Twenty years ago, as a new and enthusiastic Labour MP, I wrote an article for The Observer in praise of spin. I argued that if citizens are to be properly informed and engaged in their democracy, politicians - and in particular governments - have a duty to craft their messages carefully and communicate them cogently. It was a controversial notion then but less so now that we have entered the era of post-truth politics. In the old days, we used to "manage" the truth. Now we have abandoned it. 

We’ve probably come further than we think, for when truth is discarded, reason generally follows. Without a general acceptance of the broad "facts" of any matter, there can be little basis for rational debate nor, therefore, for either the consensus or the respectful disagreement which should emerge from it. Without a commitment to truth, we are free to choose and believe in our own facts and to despise the facts of others. We are free too to place our faith in leaders who make the impossible seem possible. 

We condemn the dictatorships which deny their citizens the right to informed and open debate. But in our own societies, unreasoned and often irrational politics are entering the mainstream. 

The politics of unreason

In the UK, the Leave campaign blithely wedded brazen falsehood to the fantasy that Brexit would cure all ills – and millions of voters enthusiastically suspended their disbelief.  “We want our country back” was a potent slogan - but no less vacuous than the pledge to “make America great again” on which Donald Trump has founded his election campaign. On both sides of the Atlantic, people want to take back control they know they never had nor ever will.

Both campaigns have deliberately bypassed rational argument. They play instead to the emotional response of angry people for whom reason no longer makes sense. Since the time of Plato and Aristotle, democracy’s critics have warned of the ease with which reason can be subverted and citizens seduced by the false oratory of charismatic leaders. Trump is just the latest in a long line of the demagogues they feared. He may not make it to the White House, but he has come a long way on unreasoning rhetoric - and where he leads, millions faithfully follow. He has boasted that he could commit murder on Fifth Avenue without losing votes and he may well be right.

But if Trump is extreme, he is not exceptional. He is a phenomenon of a populism of both right and left which has once more begun to challenge the principles of parliamentary democracy.

Democracy in decline

All over Europe and the United States, consumer-citizens are exasperated by democracy’s failure to meet their demands as fully and as fast as they expect. If the market can guarantee next day delivery, why can’t government? The low esteem in which elected politicians are held is only partly the consequence of their failings and failures. It is also evidence of a growing disenchantment with representative democracy itself. We do not trust our politicians to reflect our priorities. Perhaps we never did. But now we’re no longer prepared to acknowledge their unenviable duty to arbitrate between competing political, social and economic imperatives, nor ours to accept the compromises they reach - at least until the next election.

We have become protesters against rather than participants in our politics and, emboldened by hearing our chosen facts and beliefs reverberating around cyber space, have become increasingly polarised and uncompromising in our protest. 

The Trumpy Corbynites

Which brings us to Labour. Despite the obvious political differences between Jeremy Corbyn and Donald Trump, there are striking similarities in the movements which have coalesced around them. For many of their supporters, they can simply do no wrong; each criticism provides further evidence of a corrupt establishment’s conspiracy against them; rivals, including those who share many of their beliefs, are anathematised; unbelievers are pursued across the internet; inconvenient facts are reinterpreted or ignored; rational, civil debate is shut down or drowned out. 

There are other similarities in these insurgencies: both mistake slogans for policies and mass rallies for popular support; both are overwhelming and quite possibly destroying their own parties – and both, ultimately, are movements without practical purpose.

Trump may give vivid expression to his followers’ grievances but, other than building a wall along the Mexican border, his plans for government are obscure. Similarly, while Corbyn and his supporters know what they’re against, they have not yet articulated a clear vision of what they’re for, much less how it can be achieved. For many of them, it is enough to be "anti-Blairite". 

But in disassociating themselves from a Labour prime minister’s mistakes, they are also dismissing their party’s achievements under his leadership. Their refusal to acknowledge the need for compromise may well enable them to avoid the pitfalls of government. But government’s potential to bring about at least some of the change they want does not come without pitfalls. In wanting it all, they are likely to end up with nothing.

The art of compromise

Democracy cannot be sustained simply by what passionate people oppose. And though movements such as Momentum have important roles to play in influencing political parties, they cannot replace them. Their supporters want to be right - and they often are. But they are rarely prepared to test their principles against the practical business of government. The members of political parties want, or should want, to govern and are prepared, albeit reluctantly, to compromise – with each other, with those they seek to represent, with events -  in order to do so. Parties should listen to movements. But movements, if they are to have any practical purpose, must acknowledge that, for all its limitations, the point of politics is power.

We have to trust that the majority of American voters will reject Donald Trump. But closer to home, if Labour is to have a future as a political force, Corbyn’s supporters must learn to respect the historic purpose of the Labour party at least as much as they admire the high  principles of its current leader. There isn’t long for that realisation to take hold.

In the UK as in the US and elsewhere, we need to rediscover the importance of common cause and the art of compromise in forging it. The alternative is a form of politics which is not only post-truth, post-reason and post-purpose, but also post-democratic. 

Peter Bradley is a former MP and director of Speakers' Corner Trust, a UK charity which promotes free speech, public debate and active citizenship.