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Hatred, Sexual Orientation, Free Speech and Religious Liberty

  • Ian Leigh (a1)

In recent years, the clash between supporters of religious liberty and sexual orientation equality legislation has led to repeated battles both in Parliament and the courts. First came the clashes over the scope of exemptions in employment discrimination legislation for religious groups. The UK Regulations dealing with employment discrimination on grounds of sexual orientation give a limited exception for ‘employment for purposes of an organised religion’, which allows an employer to apply a requirement related to sexual orientation to comply with the doctrines of the religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. A legal challenge brought to the scope of this exception was unsuccessful but, despite that, the exemption has not averted damaging findings of discrimination against the Church of England. The Bishop of Hereford was held to have discriminated unlawfully in blocking the appointment of a practising homosexual to a youth-officer post within the Church of England. The partial success of religious groups in achieving exemption was followed by defeat in the equivalent regulations dealing with discrimination in goods and services, made under the Equality Act 2006, despite the claims of Catholic adoption agencies that they would rather close than place children with same-sex couples.

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1 This Comment draws on Leigh, I, ‘Religiously-motivated discriminatory speech: “homophobia” and equality denial’ in Goldschmidt, J and Loenen, T (eds), Religious Pluralism and Human Rights in Europe: where to draw the line? (Antwerp, 2007), pp 251265, and Leigh, I, ‘Homophobic speech, equality denial and religious expression’ in Hare, I and Weinstein, J (eds), Extreme Speech and Democracy (Oxford, forthcoming 2009).

2 The Employment Equality (Sexual Orientation) Regulations 2003, 2003 SI/1661, Reg 7(3).

3 R (on the application of Amicus et al) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin). Richards J stated (para 186) that ‘it was entirely proper in the present case for the State to seek to balance the rights of homosexuals against those of followers of organised religions. The strength of feelings on both sides is amply demonstrated by the claims and interventions in these proceedings. The balance struck is proportionate’.

4 ‘Bishop fined in gay discrimination case’, Daily Telegraph, 8 February 2008, available at <>, accessed 11 June 2008.

5 McClintock v Dept of Constitutional Affairs UKEAT/0223/07/CEA, 31 October 2007. See also ‘Apology by police to Christians hounded in gay row’, Daily Mail, 23 December 2006.

6 See now Criminal Justice and Immigration Act 2008, s. 74 and sched. 16.

7 In one adjudication, concerning an advertisement placed by the Gay Police Association in the Independent newspaper under the heading ‘in the name of the father’, the Advertising Standards Authority found that an alleged link between religious views and homophobic violence was unsubstantiated. The GPA was instructed by the ASA to ensure that future campaigns were not presented in a way that could cause undue offence or use imagery that gave misleading messages. See Advertising Standards Authority Adjudication, 18 October 2006.

8 Racial and Religious Hatred Act 2006.

9 P Tatchell, ‘Hate speech v free speech’, Guardian Unlimited, 10 October 2007, available at <>, accessed 11 june 2008. See also M Parris, ‘We gays are not so weedy that we can't take insults’, The Times, 11 October 2007, available at <>, accessed 11 June 2008, and ‘Free speech demands a bit of give-and-take, m'luds', The Times, 24 April 2008, available at <>, accessed 11 June 2008.

10 ‘Memorandum to the Public Bill Committee on the Criminal Justice and Immigration Bill from the Department for Christian Responsibility and Citizenship, Catholic Bishops’ Conference of England and Wales, and the Mission & Public Affairs Council of the Church of England', 22 November 2007, available at <>, accessed 11 June 2008; Christian Institute, The ‘Homophobic Hatred’ Offence, Free Speech and Religious Liberty (Newcastle, 2008), available at <>, accesses 11 June 2008.

11 Criminal Justice Act 2003, s 146.

12 A ‘hate incident’ is regarded as ‘Any incident, which may or may not constitute a criminal offence, which is perceived by the victim or any other person, as being motivated by prejudice or hate’ (Association of Chief Police Officers and Home Office Standards Unit, Hate Crime: delivering a quality service (London, 2005), para 2.2.1 (emphasis added)). The Crown Prosecution Service's policy is also to treat an incident as ‘homophobic’ where it is perceived to be so by the victim or any other person: see <>, accessed 11 June 2008.

13 F Bennion, ‘New police law abolishes the reasonable man (and woman)’, (2006) 170 Justice of the Peace 27; J Freedland, ‘How police gay rights zealotry is threatening our freedom of speech’, The Guardian, 18 January 2006, available at <>, accessed 11 June 2008; Lawyers Christian Fellowship, Public Policy Unit, Briefing on the Criminal Justice and Immigration Bill: incitement to hatred on grounds of sexual orientation, 15 February 2008, Appendix 2, available at <>, accessed 11 June 2008.

14 OFCOM, Programme Complaints Bulletin, 28 June 2004, 3, available at <>, accessed 11 June 2008; ITC Determination, 20 December 1999.

15 Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/1661, reg 5(1). A partially successful attempt was made to challenge a comparable provision in the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 dealing with discrimination in goods and services in An Application for Judicial Review Brought by the Christian Institute et al [2007] NIQB 66 (11 September 2007). Weatherup J appeared to accept the possibility of a potential conflict between the right to express ones religious beliefs and the statutory definition of harassment on grounds of sexual orientation (ibid, para 84).

16 Cf Peterson v Hewlett-Packard Co. 358 F3d 599 (9th Cir 2004), in which the court affirmed summary judgment for an employer that had dismissed a devout evangelical employee for responding to the employer's diversity poster featuring a gay employee by prominently displaying a poster with biblical texts that condemn homosexuals to death. In Bodett v Coxcom, Inc. 366 F3d 736 (9th Cir 2004), an employee's Title VII religious discrimination claim was dismissed: the plaintiff's employment had been terminated for repeatedly telling a lesbian subordinate of her religious objections to homosexuality, in violation of the employer's anti-discrimination and anti-harassment code. See further: J Moldover, ‘An employer's dilemma: when religious expression and gay rights cross’, New York Law Journal, 31 October 2007. I am grateful to Simon Calvert for pointing out these references.

17 ‘Dutch court clears anti-gay Imam’, BBC, 9 April 2002, available at>, accessed 11 June 2008; van Binnelandsezaken en Koninkrijksrelaties, Ministerie, Policy Document on Fundamental Rights in a Pluralistic Society (Netherlands, 18 May 2004), 17. See further, J-P Loof, ‘Freedom of expression and religiously-based ideas on homosexuality: European and Dutch standards’ in Goldschmidt and Loenen, Religious Pluralism in Europe, pp 267–278.

18 Prosecutor General v Åke Ingemar Teodor Green, the Supreme Court of Sweden, Case No B 1050–05, issued in Stockholm on 29 November 2005. An English version is available from the Supreme Court's website at <>, accessed 11 June 2008.

19 [2004] EWHC 69 (Admin).

20 The Public Order Act 1986, s 5(1) creates a wide-ranging offence of using ‘threatening abusive or insulting’ words, signs or behaviour ‘within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby’.

21 Handyside v UK [1979] 1 European Human Rights Reports 737, [49].

22 An application to the European Court of Human Rights was declared inadmissable because Hammond had by that time died: Fairfield v UK, Appl No 24790/04, 8 March 2005.

23 Cf Canadian Criminal Code, Art 319(3)(b).

24 Cf the Supreme Court of Sweden's discussion in the Green case (above) to ‘sermon-like’ situations.

25 HC Debs, 9 January 2008, cols 448 ff.

26 Section 29J of the Public Order Act 1986 provides that ‘Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.’

27 HC Debs, 6 May 2008, cols 599 ff.

28 HL Debs, 7 May 2008, cols 594 ff.

29 As in Hammond, above.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
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