Anglican Mainstream

Response on behalf of Anglican Mainstream to Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services.

Executive Summary

1. Our response is based on a concern for the health and wellbeing both of the community as a whole and of homosexual people.
2. There is a tension between sexual orientation rights for 2-3% of the population and rights to freedom of speech and freedom of religion for the 70% of the population who affirm a religious belief.
3. The proposals should distinguish discrimination based on homophobia from that based on legitimate religious views about homosexual behaviour.
4. The proposals as they stand risk criminalising a large part of the religious community in the UK and reducing them to second class citizens
5. The proposals fail to appreciate that religion is not restricted to religious services but embraces the whole of life, including much voluntary social and community action which is a direct outworking of religious conviction and integral to it.
6. The proposals risk the closure of up to 40% of the voluntary religious social provision in the country, adding further burdens to the state and the exchequer and further disadvantaging the old, the poor, and the marginalised.
7. The proposals fail to provide protection and exemption for individuals and those involved in commerce.

Anglican Mainstream is an international community within the Anglican Communion teaching and preserving the Scriptural truths on which the Anglican Church was founded. We seek to nurture, support and network orthodox Anglicans throughout the Communion. Anglican Mainstream UK is a company limited by guarantee and a registered charity.

We are a movement of organisations, churches, dioceses and individuals within the Anglican Communion worldwide that has a specific task. In the UK, our network includes the Church of England Evangelical Council, Church Society, New Wine and Reform. We describe ourselves as Orthodox, Evangelical, Catholic, Charistmatic, Mainstream. We represent about 3500 congregations within the Church of England and are amongst those consulted by the Archbishop of Canterbury for the views of orthodox members of the Church of England.

Anglican Mainstream’s work is focused on supporting, encouraging and resourcing the mission of the church to people and communities through the faithful preaching and teaching of the gospel of Jesus Christ.

Website: www.anglican-mainstream.net

Anglican Mainstream UK Steering Committee: Rev David Banting (Reform), Bishop Wallace Benn (President of Church of England Evangelical Council, Bishop of Lewes) Prebendary Richard Bewes, Rev John Coles (New Wine), Rev George Curry (Church Society), Rev Alyson Davie, Dr Philip Giddings (Convenor), Rev Elisabeth Goddard, the Ven Michael Lawson, Rev David McCarthy (Scottish Anglican Network), Rev Dr Will Strange (Evangelical Fellowship in the Church in Wales), Rev Dr Richard Turnbull (CEEC), Rev Nick Wynne-Jones (CEEC) Canon Dr Chris Sugden. Episcopal Adviser Rt Rev Graham Cray (Bishop of Maidstone)

Introduction

As Christians committed to the teaching of the Bible and the convictions, faith and practice of the Church of England, we are concerned to promote the well being of society through respect and honour for marriage as between one man and one woman, and the fair participation and access of all people to their legitimate rights and freedoms in society.

The grounds for the objections of religious people to homosexual practice need to be appreciated in this consultation. They are not conforming to some outmoded and discredited belief out of nostalgia or prejudice. Most are genuinely concerned that a practice that God warns humanity against is highly dangerous and potentially harmful not only to the health of those who engage in it, but also to the well being and social health of the community as a whole. This concern is expressed not in condemnation but in seeking to direct those drawn to homosexual behaviour to a more fulfilling and healthy way of life. There are many religious groups who bear testimony to the fact that homosexual orientation is not fixed and is changeable. This may be unpalatable to many homosexual campaigners, but that does not alter the facts of the case. Religious people want to point to a “better way”.

Our response to the Government’s proposals is not therefore focused on restricting the legitimate and lawful activities of homosexual people. Rather, our response is focused on restricting the ability of homosexual people – who according to www.avert.org, a gay and lesbian website, amount to 2.6% of the adult population of the UK – to restrict the activities of those who disagree with them. The way they are seeking to do this is to use the blunt instrument of the law to compel those who have religious convictions to make their own goods and services available to support and promote behaviour they genuinely believe to be against the best interests of society and homosexual people themselves, as well as against the will of God. Such a law would seek to compel religious people to act against their conscience, and unjustly to curtail the freedom of belief, speech and religious practice of the 70% of the population who identify themselves as having religious beliefs.

We believe that such legislation would be like closing down the work of a support, assistance and advice centre to those struggling with an unhealthy addiction on the grounds that it is discriminatory, even though it was offering to give help to those who need it. As a result the work of religious and voluntary organisations would be also curtailed in serving many disadvantaged groups.

A much better way to achieve the goal of reducing unfair discrimination would be to apply the regulations solely to exclude homophobic behaviour.

Under the proposals as currently framed, Christian and other faith groups would fall foul of the law if they offered their halls, accommodation, hostels and conference centres for public use but not for use by organisations or persons promoting homosexual behaviour or practice ( which would be counter to their charters and objects) . They would be compelled to withdraw their availability to the public since there would be no alternative to allowing on their premises activities which they regard as both sinful and harmful. To make them available would compel them to act against their consciences – as significant as compelling them to make them available for gambling or prostitution.

These difficulties arise because of the failure of the proposals to distinguish between sexual orientation and behaviour. Requiring equal treatment on the grounds of sexual orientation will require those who have religiously based convictions about the moral worth of conduct to act in ways which conflict with those convictions. The rights of homosexual people would not be restricted because such premises and services will be available from other providers. Their choice will be whether to use services provided by a religious organisation. On the other hand, compelling religious organisations to make their services available gravely restricts their rights to religious freedom. Thus the rights to be free from discrimination on the grounds of sexual orientation would always trump the right to religious freedom.

This would also affect individuals. Companies would have to ask potential employees if they would refuse to engage in any of the activities of the company which involved endorsing homosexual activity; schools would have to ask potential teachers if they would refuse to teach that homosexual activity is the equivalent to heterosexual activity. People who had religious convictions on these matters would be then discriminated against on the grounds of religion. This would exclude Moslems, Christians and Jews from many professions and businesses on the grounds of their religion.

There is a real question whether the whole Government is aware of the impact that these proposals if carried out would have on the provision of goods and services by the faith community as part of the voluntary sector to the whole community. It is estimated that such withdrawal would see a 40% cut in the services made available through the voluntary sector. This would bring further pressure on the government to make good the shortfall through its own provision which could only be secured through increase of taxes. The provision of these services cover the following disadvantaged groups – homeless shelters, mother and toddler groups, provision for the elderly, youth clubs, drug and alcohol addicts. The losers would be the poor and disadvantaged.

It may be the Government’s aim to confine the involvement of Christians and those of other faith communities to a very restricted private sphere. People of religious conviction will become second class citizens in that they will not be allowed to live their lives freely in accord with well accepted religious beliefs. They will not be allowed to contribute their voice or their services to the wider community. If that is the case the Government should clearly admit this. In the absence of any statement to the contrary, or any acceptable provision for those who have conscientious and religious objections, it can only be assumed that this is the case.

Many of the above objections would be taken care of by implementing for these regulations those exceptions which are found in the Sexual Orientation (Employment) regulations 2003, and Part 2 of the Equality Act sections 56-64. These would cover schools and religious organisations. These exceptions were carefully debated by Parliament and represent a much fairer striking of the balance between equality rights and religious freedom than is reflected in the current proposals.

However, these exceptions do not adequately cover the activities and consciences of individuals, nor or commercial organisations and therefore there must be explicit exception on the same grounds for individuals who provide goods and services who have genuinely founded religious convictions about sexuality, and for commercial organisations whose owners or staff have those same convictions.

These general points will be elaborated as the questions are addressed.

Q1 Do you agree that the new Sexual Orientation regulations should apply to goods, facilities and services?

Not in this form.

There are a number of general problems with the proposals that affect all the questions.

First, the proposals wrongly assume that issues of sexual orientation are comparable to the issues of race, sex and disability. This is obviously false. Race, sex and disability cannot be changed by a person’s will. Religion and sexual orientation can and does. Therefore just as the law cannot be used to regulate religion, it also cannot be used to regulate attitudes to sexual orientation and behaviour which are essentially matters of personal choice. These proposals will remove the freedom of people to act according to their convictions about sexual behaviour and orientation and to a significant extent their freedom to act in accordance with their religious beliefs. As with religion, compulsion to believe and act in a certain way undermines the authenticity of the belief or action.

Secondly, there is a failure to distinguish discrimination based on orientation from discrimination based on behaviour. Homosexual orientation is not wrong. But Christians in common with followers of other religions hold that homosexual conduct is wrong, and they would discriminate against that in the same way that they would discriminate against stealing property or cheating in exams. The legislation fails to observe this distinction and thus will require people of religious convictions to accept homosexual conduct on their premises if they make them available for public use as a service to which they have the most profound objections.

Thirdly, the regulations should only prohibit discrimination that is clearly homophobic ( that is an irrational prejudice based on a dislike of homosexual behaviour or their orientation towards people of the same sex) and on the grounds of sexual orientation, but people who hold religious beliefs on the matter should be free to discriminate on the grounds of homosexual conduct. Religious teaching on homosexual conduct is not based on irrational prejudice but on millennia of religious teaching common to all the world’s religions that homosexual practice is wrong and harmful.

Fourthly, there is a question about how appropriate it is to include in the conferral of rights the rights to equality in the provision of goods, services, facilities, and education. Removal of unnecessary restrictions is not the same as the extension of universal provision through all providers to the extent of overriding their deepest convictions on the matter.

It is important that these goods and services are defined as those provided in exchange for remuneration ( contra para 3.5 of the Consultation paper). It cannot be right to force someone who voluntarily provides goods and services at their own cost to provide them to someone against their will.

Q2 Should the concept of goods, facilities and services have the same scope as in other equality legislation, in particular Part 2 of the Equality Act 2006?

No. These should only apply to goods and services offered for remuneration. If the same approach is taken as in part 2 of the Equality Act, then the same exceptions should also be provided.

Q3 Do you agree that we should provide an exemption from the prohibition on sexual orientation discrimination so that services to meet a specific and justified need can be provided separately to different groups on the basis of their sexual orientation? What specific activities would such an exception need to apply to?

No since the question is based on a false premise. It would introduce so many anomalies if the current basis of the proposal (discrimination on the grounds of orientation, rather than on the grounds of homophobia and behaviour) is conceded as to make the law unworkable. So a man/woman dating agency could not operate, neither could a heterosexual only club exclude gay people. This would be unacceptable to the proposers of this legislation. The very fact that this exception is suggested demonstrates the false premises of the legislation which if applied without discrimination would outlaw the very activities of the people it seeks to protect.

To the extent that they allow such groups to act in accordance with their goals and ethos, these exceptions should only be granted if similar exemptions to allow other groups to act in accord with their goals and ethos are also granted, namely to religious groups. It is manifestly unjust to use the law to force religious groups to act against their values and ethos and at the same time give homosexual groups exemption from the law to act on theirs.

There must be explicit exception on the same grounds for individuals who provide goods and services who have genuinely founded religious convictions about homosexuality, and for commercial organisations whose owners or staff have those same convictions. It would not be regarded as just to require by law a member of the Labour Party to publish, distribute or advertise material which directly attacked the beliefs and principles of that party, or for example material produced by the British National Party.

Q4 Do you agree that premises should be covered by the sexual orientation regulations?

No. If the government does not agree to substantial revision of the basis of the legislation, then their implementation would prevent people of religious convictions acting in accord with their religion in regard to their use of the premises they regard as entrusted to them for the purposes of expressing and observing their religion. It would force them to act against their beliefs and deny them freedom of religion as guaranteed by article 10 of the ECHR.

Q5 Do you agree that an exemption should be provided for selling or letting of private dwellings as described in this consultation paper?

Yes. And it should extend to all individuals and organisations in public life.

Q6 Do you agree that private members clubs should be included in the sexual orientation regulations?

Not if the regulations take the form proposed. If the government changes the basis of the legislation to outlaw homophobic discrimination there would be no need for exceptions and private clubs should be included. But, if they insist on the regulations as they stand then they should be excluded.

Q7 What is your view on our proposal that both private members clubs and associations should be permitted to include having a particular sexual orientation as a membership criterion, but only where this criterion is explicitly connected with the purpose for which the club has been established?

The very fact that this exception is suggested demonstrates the false premises of the legislation which if applied without discrimination would outlaw the very activities of the people it seeks to protect. If the basis of the Regulations were to be changed, then there would be no need for such exceptions. If the basis is not changed, then clubs could be set up for heterosexuals only which again is the very issue the regulations are trying to avoid.

Q8 Do you agree that the new sexual orientation regulations should apply to public functions as well as to goods, facilities and services? Do you think that any specific additional exceptions might be needed from a prohibition on sexual orientation discrimination in the exercise of public functions?

No, they should not apply to public functions, unless the basis of the legislation is changed. Those motivated by religious doctrine must have the freedom to act in accordance with that doctrine without being in breach of the law. Otherwise one discrimination will be addressed by introducing another more extensive one.

Q9 Do you agree that schools should be covered by the sexual orientation regulations?

No, unless there are very specific safeguards for teachers so that they are not required to give teaching on sexual orientation and practice that is against their conscience and religious beliefs. Under the Employment Regulations of 2003, no teacher may be dismissed for failing to teach that all orientations are equal if they are acting according to religious beliefs.

Teaching has been a vocation in which Christians and Churches have played a significant role. The whole development of universal education in this country in the nineteenth century was entirely due to the activity of the Churches. If teachers will be compelled to teach children material which their religious beliefs and often experience of life informs them is harmful to them and the community, then there will be a major question whether Christians will undertake teaching as a profession since they will be forced to act against their consciences or fall foul of the law. Without safeguards there would be a major curtailment of freedom of speech.

Q10 Are there any circumstances in which you consider that schools, or a part of the schools sector, should be exempted from the regulations?

Yes, there should be comprehensive exemptions on the grounds of religious doctrine for faith schools. At the minimum we would look for a similar arrangement as the 2003 Employment legislation which exempts the schools’ religious curriculum.

Q11 Are there any areas of activity for schools for which you consider special provision needs to be made?

To impose a duty not to discriminate on grounds of sexual orientation would require schools maintained by Churches and faith communities to give equal prominence to values and conduct that were incompatible with the school’s ethos. Therefore there should be exemption in relation to the content of the curriculum and the worship at all faith and maintained schools.

There should also be an exemption covering the use of the premises. Without this faith schools would be required to make their premises equally available to groups established for purposes that were at variance with their ethos and would deeply offend the consciences and beliefs of parents, staff and pupils.

If the teaching of citizenship or social health or any other subject at any school in the country, contravenes a religious view on homosexual practice, then it should be made explicit that a parent can withdraw their child from those lessons on conscience grounds.

Q12 Do you consider that an exemption should be provided from the regulations for some of the activities of religious organisations?

Yes. The regulations should only prohibit discrimination that is clearly homophobic ( that is an irrational prejudice based on a dislike of homosexual behaviour or their orientation towards people of the same sex) and on the grounds of sexual orientation. But people who hold religious beliefs on the matter should be free to discriminate on the grounds of homosexual conduct. Religious teaching on homosexual conduct is not based on irrational prejudice but on millennia of religious teaching common to all the world’s religions that homosexual practice is wrong and harmful.

Thus ministers of religion should be allowed to exercise the discrimination which their religion requires in the matter of homosexual conduct, for example with reference to providing services of blessing or in the context of admission to baptism or Holy Communion. Religious groups who hold that marriage is exclusively between a man and a woman, and that therefore there is no moral or legal equivalent, as the Government asserts, between heterosexual marriage and same sex civil partnerships, must not be compelled against the teachings of their religion and their beliefs to conduct any ceremonies or use their premises for any ceremonies that involve persons who deny this but wish to use them.

These religious exceptions do not just apply to ceremonies. See the answer to Question 13.

Q13 Do you agree that these exemptions should be restricted to activities that are primarily doctrinal? If there are any other activities that you consider should be covered by an exemption, what are these and why do you consider that the need to be exempted?

No. This question is based on a fundamental misconception. Religion covers the whole of life. Religious believers are not secularists who happen to attend a cultic service once a week. They are people whose religious beliefs inform the way in which they live their whole lives. This is most obvious in issues such as marriage where most religious people believe that marriage is in accord with the teachings of their religion; giving to charity where studies show that religious people give more per head to charities than others; work, where religious beliefs teach honesty and hard work, for example in the Protestant work ethic. If a religion teaches its followers that homosexual practice is sinful, and all religions do, then many activities will have to be exempted to allow people to act consistently with their religion. Since this will be unworkable and unenforceable, it is better to define clearly that only deliberate homophobic discrimination and discrimination on the grounds of sexual orientation is in view, but leaving the freedom to discriminate on the grounds of homosexual conduct.

The notion that religion only covers a very restricted group of activities which are held to be doctrinal indicates a very serious misunderstanding. It is precisely this misunderstanding which is at the root of the alienation of culture based religious groups in this country – especially Muslims. They do not think that the elites and governing classes in western culture understand or respect the fact that their religion governs the whole of their lives.

To introduce a de facto limitation on manifesting religious belief or requiring people to act contrary to their beliefs would be an infringement of article 9 of the European Convention on Human Rights.

To legislate for people’s moral behaviour against their well founded religious convictions would go back to the medieval practice of the Inquisition. The whole of modern democratic society is based on freedom of religion and freedom of speech. These proposals if carried out would cut at the heart of these fundamental freedoms.

There is currently no curtailment of the freedom of homosexual people to act in accord with their wishes in those places which accept such behaviour. These proposals would require all places to accept such behaviour whether they wish to or not. www.avert.org, a gay and lesbian website, quotes a 2000 National Survey that 2.6% of the population had a same sex partner in the previous 5 years. This legislation is making universal provision for such people over against the 70% of the country who indicated that they have a religious allegiance which will be significantly compromised if these proposals are enshrined in law.

There is the further question of what counts as ‘doctrinal matters’. Who is to decide? Will the government take over the role of the faith communities and decide for the faith communities what is doctrinal and what is not? Would they delegate this to the judiciary? Have the government or the judiciary the competence to make these decisions?

Under the regulations as they are proposed:

• It would be illegal for Christian run accommodation of any kind to refuse to let accommodation to a homosexual couple on the grounds of being practiSing homosexuals. This would force the Christians responsible to facilitate conduct that is against the Bible’s teaching, their own consciences, and also the consciences of other users of the service, and that might seek to encourage others in similar immoral conduct. Thus it would be entirely possible that a conference of those promoting heterosexual marriage and family life might find itself in the same accommodation as those promoting and engaging in homosexual activities. This would be mischief making against which there would be no defence in or recourse to law.

• It would be illegal for any business ( such as publishers, advertisers, media) to refuse to take business that sought to promote homosexual activity if the proprietors thought that such activity is immoral and harmful.

• It would be unlawful for a minister of religion to refuse any ceremony to active homosexuals on the grounds that their behaviour conflicted with the teachings of their religion.

• Any organisation receiving public funding would be required to open their facilities to be used by people for purposes which they regard as immoral and harmful.

• Any church which refused to make a grant or donation to an organisation which promoted homosexuality might fall foul of the law on the grounds that it exercised discrimination on the grounds of sexual orientation.

• Any membership organisation which required its members to sign their assent to biblical teaching would be regarded as discriminating against homosexuals on the grounds that the bible teaches that homosexual practice is wrong.

Q14 Do you agree that an exception should be provided for charities that provide services specifically to people because of/according to their sexual orientation?

Yes, but many charities specify beneficiary groups which should also benefit from such an exemption. Many religious bodies are charities and charities should be able to discriminate on the grounds of sexual conduct in the provision of benefits. For example trustees of religious charities providing housing should be able to apply their religious views to the sexual conduct of those occupying that housing, whether for ministers of religion, or retired people, or for young people away from home or emergency accommodation for asylum seekers or the homeless. If LGBT people may have exceptions for organisations that express their ethos, why should not other people have such exceptions for their organisations which express their ethos?

Q15 Do you agree that the sexual orientation regulations should include direct and indirect discrimination as well as victimisation? Are there any particular considerations or situations that should be taken into account in how such provisions are drafted?

No. How might “indirect” be defined? It is a notoriously difficult concept in law. The real problem is direct homophobic (irrational) discrimination. It is not well addressed in this fashion.

Q16 Do you agree that discriminatory practice should be included in the scope of the sexual orientation regulations?

No. For religious groups discriminatory practice refers to behaviour not orientation. So most religious groups welcome the participation of homosexual people as long as their behaviour conforms to the ethos of the group.

Q17 Do you agree that discriminatory advertising should be included in the scope of the sexual orientation regulations?

Not under the regulations as currently proposed.

Q18 Do you agree that instructions to discriminate should be covered by the sexual orientation regulations?

Not under the regulations as currently proposed.

Q19 Do you agree that validity of contracts should be covered by the sexual orientation regulations?

No – unnecessary. A ruling under the legislation would in any case void the contract so anything further is otiose.

Q20 Do you agree that the enforcement provisions for the sexual orientation regulations should match those for the other equality enactments?

No. Sexual orientation is not comparable to gender, race and disability and should not be treated in the same way. The regulations should mirror Sexual Orientation Employment Regulations 2003 and part 2 of the Equality Act 2006. There should be significant exceptions to protect people who act on grounds of genuine religious beliefs.

Q21 Do you have any comments on the Government’s plans for how the sexual orientation regulations will be enforced and supported by the CEHR?

No.

Contact Details:

Canon Dr Chris Sugden
Executive Secretary
Anglican Mainstream
21 High Street
Eynsham
OX29 4HE

csugden@anglican-mainstream.net
Landline and Mobile: 01865-883388
www.anglican-mainstream.net

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