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A No-Win Situation for Public Officials with Faith Convictions

  • Andrew Hambler (a1) (a2)
Abstract

This article considers two recent high-profile employment cases to investigate the peculiar dilemma faced by certain public officials who are called upon to implement public policy in situations where their consciences are made uneasy due to their faith-based convictions. Such officials face, among other options, the dilemma of choosing between an appeal to rational objections, based on ‘public reasons’ that are non-religious in character, or citing their own faith-based conscientious objections. In McClintock v Department of Constitutional Affairs, by initially basing his objections on a form of public reason, McClintock arguably muddied the waters for his subsequent unsuccessful claim of religious discrimination. In Ladele v Islington Borough Council, however, the appeal to conscience alone also failed as religious convictions were ‘trumped’ by the superior claims of particular policy objectives. This article thus concludes that the ‘religious’ public official may, ultimately, have nowhere to turn except either to silence conscience and acquiesce or to exercise that ‘minimum’ employment right under ECHR case law – the right to resign.

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2 Leigh, I, ‘Hatred, sexual orientation, free speech and religious liberty’, (2008) 10 Ecc LJ 337347.

3 SI/2007/1263, available at <http://www.opsi.gov.uk/si/si2007/uksi_20071263_en_1>, accessed 17 June 2009.

4 See, for example, the online archives of the Christian Institute, which include briefing documents that were used for lobbying from an evangelical Christian perspective over these (and other) issues, <http://www.christian.org.uk/rel_liberties/index.htm>, accessed 11 May 2009.

5 See, for example (on civil partnerships), Falconer of Thoroton, Lord, ‘Church, state and civil partners’, (2007) 9 Ecc LJ 59. See also, on this issue, Humphreys, J, ‘The Civil Partnership Act 2004, same-sex marriage and the Church of England’, (2006) 8 Ecc LJ 289306; and, with a different perspective, Scott-Joynt, M, ‘The Civil Partnership Act 2004: dishonest law?’, (2007) 9 Ecc LJ 9294.

6 Galston, WA, Liberal Purposes: goods, virtues and diversity in the liberal state (Cambridge, 1991), pp 1314.

7 (2007) EAT 0223/07. See also case comment, (2008) Ecc LJ, 10, 375.

8 (2008) EAT 0453/08. See also case comment, (2009) Ecc LJ, 11, 122–123.

9 SI/2003/1660, available at <http://www.opsi.gov.uk/si/si2003/20031660.htm>, accessed 17 June 2009.

10 A possible (if very unlikely) additional option would be to acquiesce superficially but then seek to sabotage the morally troubling policy. Greenawalt, for example, in discussing the role of judges, identifies rare occasions when the judge finds the law so ‘abominable’ (in the sense of extremely illiberal) that it becomes his or her duty to subvert it: Greenawalt, K, Private Consciences and Public Reasons (Oxford, 1995), p 149.

11 For an analysis of the changing priorities afforded to their own religious convictions by ‘religious’ people, see Leader, SFreedom and futures: personal priorities, institutional demands and freedom of religion’, (2007) 70 Modern Law Review 713730.

12 Deakin, among others, has sketched the likely (and unattractive) labour market realities for employees who feel compelled to resign. See Deakin, S, ‘Equality, non-discrimination, and the labour market: a commentary on Richard Epstein's critique of anti-discrimination laws’, in Epstein, R (ed), Equal Opportunity or More Opportunity? The good thing about discrimination (London, 2002), p 49.

13 Wolgast, E, ‘The demands of public reason’, (1994) 94 Columbia Law Review 1942.

14 It should be noted that there may be risk (of disciplinary action) involved in merely voicing objections on some issues, even when ‘measured and reasoned’: see Rivers, J, ‘Law, religion and gender equality’, (2007) 9 Ecc LJ 52.

15 Rawls' argument is first articulated in his book, Rawls, J, Political Liberalism (New York, 1993), p 227; and then, with some revisions, in Rawls, J, ‘The idea of public reason revisited’, (1997) 64 University of Chicago Law Review 765807.

16 Greenawalt, Private Consciences and Public Reasons, p 5.

17 Rawls, Political Liberalism, p 227.

18 Ibid, p 226.

19 There are a number of criticisms of Rawls on this point; one of the most strident is Campos, P, ‘Secular fundamentalism’, (1994) 94 Columbia Law Review, 18141827.

20 See Wolgast, ‘The demands of public reason’.

21 For discussion of this point, see Vickers, L, Religious Freedom, Religious Discrimination and the Workplace (Oxford, 2008), pp 3640.

22 For a typology of forms of such manifestation in the workplace, and an explanation of so-called ‘negative manifestation’, see Hambler, A, ‘A private matter? Evolving approaches to the freedom to manifest religious convictions in the workplace’, (2008) 3 Religion and Human Rights, 111133.

23 Wolterstorff, N, ‘The role of religion in decision and discussion of political issues’, in Audi, R and Wolterstorff, N, Religion in the Public Square (London, 1997), p 117.

24 See, for example, Dworkin, R, Taking Rights Seriously (London, 1977), pp 6871.

25 Perhaps the most representative writers on the two sides of this particular debate are Greenwalt (Private Consciences and Public Reasons) and Carter (see, for example, Carter, S, ‘The religiously devout judge’, (1989) 64 Notre Dame Law Review 932944).

26 And, later, a separate letter to the Chairman of the Family Panel making similar points.

27 McClintock v Department of Constitutional Affairs (2007) ET2800834/06, para 7; McClintock, EAT 0223/07, para 7.

28 McClintock, EAT 0223/07, para 9.

29 Ibid, para 7.

30 Ibid, para 9.

31 He also claimed discrimination by way of harassment but, in the words of the EAT, this claim ‘went nowhere since there was no evidence that anything, even remotely relating to harassment, had occurred’ (ibid, para 23).

32 McClintock, ET2800834/06, para 52.

33 McClintock, EAT 0223/07, para 45.

34 Ibid, para 62.

35 Ibid, para 61.

36 Ladele, EAT 0453/08, para 7.

37 Ibid, para 9.

38 Ibid, paras 12–14.

39 Ibid, paras 44–45.

40 Ibid, para 100.

41 McClintock, EAT 0223/07, para 54.

42 Williamson v Secretary of State for Education and Employment [2003] QB 1300, para 164.

43 It is perhaps worth noting that the example given by Rix LJ to support this statement was the ‘passive’ example of a Muslim or Jew adhering to a particular dietary law without the ‘need for request or explanation’. McClintock did make a request and the employer was entitled to an explanation: see McClintock, EAT 0223/07, para 46.

44 Ibid.

45 Ibid, para 45.

46 The EAT in McClintock considered this hypothetically only, having determined that the 2003 Regulations were not, in fact, engaged at all.

47 Set out above, pp 9–10.

48 This conclusion is surely contentious in the case of Ladele, where there appears to be strong evidence to support a direct discrimination claim, given the seemingly more favourable responses to objections (to Ladele) by gay staff than the responses given to Ladele's own religious objections; see M Rubenstein, ‘In the courts’, (2009) 186 Equal Opportunities Review 29–30.

49 This was clearly perceived in Ladele by an intervenor, ‘Liberty’, albeit that the intervention, specifically regarding the indirect discrimination claim, was in support of the stance taken by the employer.

50 McClintock, EAT 0223/07, para 51.

51 Ladele, EAT 0453/08, para 110.

52 McClintock, EAT 0223/07, para 52; Ladele, EAT 0453/08, paras 23 and 117.

53 42 USC 2000e-(j) (1994). The Independent Review of the Enforcement of Anti-discrimination Legislation recommended that the UK should adopt this alternative approach, given the additional protections it offers: see B Hepple, M Coussey and T Choudhury, Equality: a new framework. The Report of the Independent Review of the Enforcement of UK Anti-discrimination Legislation (Oxford, 2000).

54 McClintock, EAT 0223/07, para 20.

55 See C Evans, Freedom of Religion under the European Convention on Human Rights (Oxford, 2000).

1 This article is based on a paper presented to the Law and Religion Scholars Network 2009 Conference at Cardiff Law School on 5 May 2009. My sincere thanks to Professor Ian Leigh of the University of Durham, for his invaluable suggestions at the conceptual stage of this article, and for his helpful comments on an earlier draft.

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