Let’s call it quits on the equality law

On Monday, the Clearing the Ground inquiry, staffed by a cross-party group of Christian MPs, published its report into ‘the freedom of Christians in the UK’. The report called for the Equality Act 2010 to be used to enforce ‘reasonable accommodation’ for Christians, with legal recourse in the form of compensation for those deemed by the courts to have been treated unfairly on the grounds of their Christian beliefs.

The report comes at time when many in politics and in the media consider it is vital to offer their diagnoses of the state of spiritual life in the UK. On the one hand, we have Conservative Party co-chair Baroness Warsi, who earlier this month argued that the UK was suffering from a ‘militant secularisation’ and called for British people to be more ‘confident’ in their Christianity. On the other hand, we have evolutionary scientist and atheist poster boy Richard Dawkins claiming that actually none of us are as religious as we thought. Today, everyone who is anyone needs a view on religion and its place in British society.

Accordingly, Clearing the Ground was charged with answering the question: ‘Are Christians marginalised in the UK?’ It may not be surprising that their answer to that one was ‘yes’. But following in the tradition of public inquiries, it helpfully answered a lot of questions that no one had actually asked: ‘Is the United Kingdom displaying symptoms of “religious illiteracy”?’ Yes. ‘Do organisations need more guidance as to how to accommodate Christian people?’ Yes. While its initial remit was narrow, it soon becomes clear that this inquiry set itself the task of fixing the ‘endemic secularisation’ identified by Warsi.

Yet there was a contradiction at the heart of the report’s findings. While calling for an extension of the law into more aspects of religious life, it took as its starting point the idea that the interests of the law and religion are often fundamentally opposed. It noted, rightly, that this conflict is most profoundly felt in the UK when it comes to freedom of expression. The report was pained to list case after case in which the rights of religious people to express themselves freely had been disregarded in the name of laws purporting to promote equality.

Take the shocking case of Dale McAlpine, who was charged under the Public Order Act 1986 on the basis that his preaching, which included proclaiming that homosexuality was a sin, amounted to a hate crime. For expressing an unconscionable opinion, McAlpine was prosecuted and taken to court, only for the charges then to be dropped with an apology from the police. Or take Adrian Smith, who was demoted within Trafford Housing Trust for posting a Facebook status update opposing gay marriage and for arguing that ‘the state should not impose its rules on places of faith and conscience’. The report is full of examples of the law fostering a climate in which the rights of religious people to express themselves freely are routinely subjugated.

Yet, despite acknowledging that the law has frequently been used against religious people expressing their beliefs, the report bizarrely argues for yet more legal intervention. The problem, in the eyes of the inquiry, is that the law does not make things quite equal enough. This desperate, pleading, ‘what about me?’ logic is used by many religious pressure groups, who in the past have similarly argued that the law does not go far enough to enforce the rights of religious people. However, this argument does not chime with the demands of many out there in the real world, such as Adrian Smith, who do not want the state interfering in religious matters at all.

But this is not only about the rights of religious people. Litigation under the Equality Act has had a corrosive effect on one of the most fundamental rights of everyone throughout society: the right to discriminate. When Peter and Hazelmary Bull were hauled up in front of the courts in 2011 for refusing entry to two homosexual men to their bed-and-breakfast establishment, which was also their home, it was not the rights of the homosexuals to stay at any hotel they liked that was at stake. After all, if you spend a weekend in my old hometown of Brighton, where gay-only hotels abound, you will realise that the right to stay in any hotel you like regardless of your sexuality does not exist. Neither should it. Nor was it about religion: refusing someone entry to your home is hardly an act of worship.

Rather it was about the rights of two admittedly homophobic people to refuse to mix with people that they did not want to. At the conclusion of these proceedings, the Bulls were effectively told that their own judgement about who they did and did not want to mix with was wrong, and that they should have to pay damages of £3,600 for trying to uphold it. Ironically, the very legislation that Clearing the Ground now seeks to extend has already eroded a right crucial to religious people: the right to organise their institutions in a manner of their own choosing.

The right of individuals to discriminate allows us to organise our lives without having to justify ourselves to anyone. That is why it is a mistake to see the Equality Act as an heir to other legislative reforms that historically brought oppressed people to be more equal and free before the law. The act does little more than cajole private individuals and institutions into behaving the way the state wants them to.

This can’t make people more moral, nor society more fair, but it does try to make both more obedient. It’s not only religious people like Adrian Smith who should resist the ‘expansion’ of the Equality Act but anyone who values their own judgement in ‘matters of conscience’, religious or otherwise.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.