The media are still focused on the phone hacking stuff (possible economic disaster in Italy and Spain is pushed to the ‘by the way’ news slot), and so it’s unlikely that an extraordinary story from the UK Equality and Human Rights Commission is going to get much of a look in. It should.

Yesterday, the Commission released a statement indicating (if it was given leave), that it would be bringing a legal action arguing that Judges have interpreted the law too narrowly in religion or belief discrimination claims, and it is now seeking to intervene in four cases at the European Court of Human Rights all involving religious discrimination in the workplace.

The Commission will propose the idea of ‘reasonable accommodations’ which they argue, will help employers and others manage how they allow people to manifest their religion or belief.

They even offer an example of a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer.

This has in turn led to Stonewall riding into battle. Stonewall Chief Executive Ben Summerskill said in a further press release:

“Stonewall is deeply disturbed at the EHRC’s statement announcing applications to intervene in European Court cases of claimed discrimination against Christians in the workplace. The case features two individuals, Lillian Ladele and Gary McFarlane, who have refused to provide public services to gay people.

The Commission should be crystal clear that if it seeks to defend the claimed right of any public servant to turn away any user of a public service, it will face strong opposition. Gay taxpayers currently contribute £40 billion a year to the cost of Britain’s public services and no lesbian and gay person should ever be deprived of access to them.”

Quite right too, but it’s worth remembering the function of the EHRC. In the words of the Commission, it has a ‘statutory remit to promote and monitor human rights; and to protect, enforce and promote equality across the nine “protected” grounds – age, disability, gender, race, religion and belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment.’
This has meant that the Commission has a barmy set-up of trying to represent a ‘batch’ of ‘minority’ interests which anyone who has ever sat on an equality group will tell you, doesn’t work. Now we see those groups in conflict. This move by the Commission is all the more extraordinary for it apparently didn’t consult with its own board – which would surely have flagged up these issues.
The most obvious difficulty that would arise from a successful move by the Commission is that those Christians who do not want to conduct a Civil Partnership – or down the line – a possible gay marriage – could decline on religious grounds. In parts of the country with a large Muslim or other orthodox religious population, it’s not inconceivable that it might become difficult to have a civil partnership conducted at all. What about the cleaner in a large hotel who doesn’t want to change the bedding in the bedroom of a gay couple – where the cleaner is one of many and someone else could do the room – a successful action by the Commission would arguably render such behaviour acceptable.
This case is about discrimination and ultimately the Commission is trying (and failing) to find a third-way between discriminating against the religious, and discriminating against homosexuals. I often tell students that understanding the law is about the application of values and ideas. There is no such thing as equality in this arena – there is instead the necessary choice of which side you back – a hatred of homosexuals or a hatred of religious freedom.
It is easy for me, as an agnostic gay man, to choose a side in that dispute. It is arguably impossible for any ‘Equality’ Commission and yet, remarkably, that is what they have done.
There is no middle ground in this debate. This is after all, a debate in which the law is cast as an instrument of values and who wins this battle will define legal attitudes to sexuality.