The extent to which members of the clergy are considered ‘employees’ for the purposes of secular employment and equality legislation has been the subject of much discussion, but essentially remains a fact sensitive question. The Equality Act 2010 (‘the 2010 Act’) seeks to prevent discrimination on the basis of nine ‘protected characteristics’. While recognizing that the application of the 2010 Act to the variety of clergy offices is ‘not straightforward’, the Church of England (‘the Church’) has opined that an equitable approach to clergy appointments is to proceed as if they were subject to the provisions of the 2010 Act. What follows is in`tended to be a thorough review of the eligibility criteria for clergy appointment in the Church to assess their compatibility with the requirements of the 2010 Act. In addition, particular consideration will be given to Schedule 9(2) to the 2010 Act which makes specific provision relating to religious requirements concerning the protected characteristics of sex, sexual orientation, and marriage and civil partnership. In short, where the employment is for the purposes of an organized religion, such as the Church, requirements which relate to these protected characteristics will not constitute discrimination where they engage the ‘compliance or non-conflict principle’. What these principles mean and how they might operate in practice is discussed below, taking into account the likely canonical and theological justifications for discriminating against certain individuals. Whether the law strikes the right balance between, on the one hand protecting clergy and, on the other, providing the Church with the autonomy to act in accordance with its established doctrine, will be explored in the final analysis.
{"title":"Discrimination and the Church of England: To What Extent does the Equality Act 2010 Adequately Protect Church of England Clergy?","authors":"Christopher Grout","doi":"10.1093/ojlr/rwaa021","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa021","url":null,"abstract":"\u0000 The extent to which members of the clergy are considered ‘employees’ for the purposes of secular employment and equality legislation has been the subject of much discussion, but essentially remains a fact sensitive question. The Equality Act 2010 (‘the 2010 Act’) seeks to prevent discrimination on the basis of nine ‘protected characteristics’. While recognizing that the application of the 2010 Act to the variety of clergy offices is ‘not straightforward’, the Church of England (‘the Church’) has opined that an equitable approach to clergy appointments is to proceed as if they were subject to the provisions of the 2010 Act. What follows is in`tended to be a thorough review of the eligibility criteria for clergy appointment in the Church to assess their compatibility with the requirements of the 2010 Act. In addition, particular consideration will be given to Schedule 9(2) to the 2010 Act which makes specific provision relating to religious requirements concerning the protected characteristics of sex, sexual orientation, and marriage and civil partnership. In short, where the employment is for the purposes of an organized religion, such as the Church, requirements which relate to these protected characteristics will not constitute discrimination where they engage the ‘compliance or non-conflict principle’. What these principles mean and how they might operate in practice is discussed below, taking into account the likely canonical and theological justifications for discriminating against certain individuals. Whether the law strikes the right balance between, on the one hand protecting clergy and, on the other, providing the Church with the autonomy to act in accordance with its established doctrine, will be explored in the final analysis.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47877954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Freedom of Religion: An Ambiguous Rights in the Contemporary European Legal Order. By Hedvig Bernitz and Victoria Enkvist (eds)","authors":"M. Evans","doi":"10.1093/ojlr/rwaa018","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa018","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43800359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Conflicts Between Religious Freedom and Sexual Orientation Non-Discrimination: Should ‘Mere Civility’ Suffice?","authors":"J. Adenitire","doi":"10.1093/ojlr/rwaa027","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa027","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa027","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46016619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal recognition of Rastafari as a religion is a crucial step in enabling its adherents to enjoy the full scope of their religious freedom. This article considers and critiques the legal implications of the High Court of Kenya’s decision in JWM (alias P) v Board of Management O High School. In JWM, the headteacher of a secondary school decided that a Rastafarian girl who wore dreadlocks for religious reasons should be excluded from the school and only be readmitted once she had cut them as her hairstyle breached school rules. The High Court concluded that this was a violation of the student’s right to education and religious freedom. Though welcoming the JWM verdict as legally correct, this article reflects critically on how the Court arrived at its conclusion. It reviews the High Court’s reasoning in JWM and offers a constructive analysis of the likely effect of JWM on Kenyan education institutions and their uniform policies. The article advocates the need for principled, context-sensitive and methodical approaches to adjudicating freedom of religion claims so as to protect the rights of religious believers and secularists alike.
{"title":"Unlocking the Legal Deadlock over Dreadlocks in Kenyan Schools: Constitutional Law, Rastafarians, and Religious Freedom","authors":"B. Yk","doi":"10.1093/ojlr/rwaa026","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa026","url":null,"abstract":"\u0000 Legal recognition of Rastafari as a religion is a crucial step in enabling its adherents to enjoy the full scope of their religious freedom. This article considers and critiques the legal implications of the High Court of Kenya’s decision in JWM (alias P) v Board of Management O High School. In JWM, the headteacher of a secondary school decided that a Rastafarian girl who wore dreadlocks for religious reasons should be excluded from the school and only be readmitted once she had cut them as her hairstyle breached school rules. The High Court concluded that this was a violation of the student’s right to education and religious freedom. Though welcoming the JWM verdict as legally correct, this article reflects critically on how the Court arrived at its conclusion. It reviews the High Court’s reasoning in JWM and offers a constructive analysis of the likely effect of JWM on Kenyan education institutions and their uniform policies. The article advocates the need for principled, context-sensitive and methodical approaches to adjudicating freedom of religion claims so as to protect the rights of religious believers and secularists alike.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"388-403"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa026","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48808845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article suggests that there may be scope to accommodate individual conscience whilst holding institutions to their full civil duties by making a structural distinction between institutions and individual members and employees. This distinction might circumvent the paralysing contrasts between more abstract human rights categories. This article approaches the question of conscience through the lens of a Dutch legislation on the position of wedding officials and in particular through a thorough critique of it by the Netherlands Council of State. The Council’s critique illuminates two important distinctions, first, between institutions and individuals and, second, between conscience and behaviour. These findings are potentially relevant in cases on access of lesbian, gay, and bisexual (LGB) people to services provided by private companies. For example, may photographers and videographers deny services to same-sex couples? May a bakery decline to supply wedding cakes? May a bakery refuse to create a custom-made cake for an LGB event? These questions arose, respectively, in the US cases Elane Photography, Telescope, and Masterpiece cases as well as the British Ashers Bakery case. And, should a Christian law school’s accreditation be rejected when a code of conduct impairs access of LGB students, eg in the Canadian Trinity Western cases?
{"title":"Conscience and Cakes: Reaffirming the Distinction Between Institutional Duties and Individual Rights","authors":"Mariëtta Van der Tol","doi":"10.1093/ojlr/rwaa022","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa022","url":null,"abstract":"\u0000 This article suggests that there may be scope to accommodate individual conscience whilst holding institutions to their full civil duties by making a structural distinction between institutions and individual members and employees. This distinction might circumvent the paralysing contrasts between more abstract human rights categories. This article approaches the question of conscience through the lens of a Dutch legislation on the position of wedding officials and in particular through a thorough critique of it by the Netherlands Council of State. The Council’s critique illuminates two important distinctions, first, between institutions and individuals and, second, between conscience and behaviour. These findings are potentially relevant in cases on access of lesbian, gay, and bisexual (LGB) people to services provided by private companies. For example, may photographers and videographers deny services to same-sex couples? May a bakery decline to supply wedding cakes? May a bakery refuse to create a custom-made cake for an LGB event? These questions arose, respectively, in the US cases Elane Photography, Telescope, and Masterpiece cases as well as the British Ashers Bakery case. And, should a Christian law school’s accreditation be rejected when a code of conduct impairs access of LGB students, eg in the Canadian Trinity Western cases?","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"372-387"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa022","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46218843","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When, if ever, do business owners have a right to be exempted from laws prohibiting discrimination in the commercial marketplace? Although public debate over this question often focuses on the issue of religious liberty, litigants seeking exemptions in court have placed equal or greater reliance on arguments about compelled speech. This article examines how such arguments have been employed in recent high-profile cases in both the UK and the USA. The article also addresses a new variation on the exemption argument inspired by Teresa Bejan’s book, Mere Civility, and the allegedly ‘minimal’ conception of civility Roger Williams advocated in the 17th century. After explaining why reliance on Bejan and Williams is misplaced, the article turns to the key questions that arise under modern compelled-speech doctrine when a business owner seeks to resist an equal-service mandate. The US Supreme Court ultimately sidestepped those questions in Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, while the UK Supreme Court (UKSC) offered cursory and unsatisfactory answers in Lee v Ashers Baking Co. This article fills the gap with a more thorough analysis.
{"title":"The ‘Mere Civility’ of Equality Law and Compelled-Speech Quandaries","authors":"J. Oleske","doi":"10.1093/ojlr/rwaa009","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa009","url":null,"abstract":"\u0000 When, if ever, do business owners have a right to be exempted from laws prohibiting discrimination in the commercial marketplace? Although public debate over this question often focuses on the issue of religious liberty, litigants seeking exemptions in court have placed equal or greater reliance on arguments about compelled speech. This article examines how such arguments have been employed in recent high-profile cases in both the UK and the USA. The article also addresses a new variation on the exemption argument inspired by Teresa Bejan’s book, Mere Civility, and the allegedly ‘minimal’ conception of civility Roger Williams advocated in the 17th century. After explaining why reliance on Bejan and Williams is misplaced, the article turns to the key questions that arise under modern compelled-speech doctrine when a business owner seeks to resist an equal-service mandate. The US Supreme Court ultimately sidestepped those questions in Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, while the UK Supreme Court (UKSC) offered cursory and unsatisfactory answers in Lee v Ashers Baking Co. This article fills the gap with a more thorough analysis.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"288-304"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41463319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Why Religious Freedom matters for Democracy: Comparative Reflections from Britain and France for a Democratic ‘vivre ensemble’. Myriam Hunter-Henin","authors":"M. Evans","doi":"10.1093/ojlr/rwaa030","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa030","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa030","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48139021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Empathy and Procedural Justice in Clash of Rights Cases","authors":"Megan Pearson","doi":"10.1093/ojlr/rwaa012","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa012","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"350-371"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47889783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tolerating the Intolerant: Religious Freedom, Complicity, and the Right to Equality","authors":"S. Fredman","doi":"10.1093/ojlr/rwaa017","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa017","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"305-328"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41801097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court got it right in the Ashers (‘Gay cake’) case. It decided correctly the important legal issues central to the case: the scope of indissociability; the scope of ‘associative’ discrimination in sexual orientation goods and services discrimination claims; whose characteristics are relevant for determining whether an action amounts to unlawful discrimination; and the extent of the protection which freedom of expression accords individual service providers and companies from ‘forced’ or ‘compelled’ political and religious expression. Much of the critical commentary that followed the case is overblown. In some respects, the case is somewhat less legally significant, and less legally controversial, than the commentary would suggest. Underlying some of the resistance to the decision is a sense that the Court should have manipulated the legal test of unlawful discrimination to reach a morally satisfying result. This is not how the Court should decide such cases, leading as it does to a severe rupture with the idea of legality and the Rule of Law. In any event, the three (moral) arguments that are drawn on—dignity, equality, and conscience-scepticism—are less helpful that might appear in addressing Ashers-type cases, and do not undermine the normative foundations of the Supreme Court's decision.
{"title":"The Gay Cake Case: What the Supreme Court Did, and Didn’t, Decide in Ashers","authors":"C. McCrudden","doi":"10.1093/ojlr/rwaa011","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa011","url":null,"abstract":"\u0000 The Supreme Court got it right in the Ashers (‘Gay cake’) case. It decided correctly the important legal issues central to the case: the scope of indissociability; the scope of ‘associative’ discrimination in sexual orientation goods and services discrimination claims; whose characteristics are relevant for determining whether an action amounts to unlawful discrimination; and the extent of the protection which freedom of expression accords individual service providers and companies from ‘forced’ or ‘compelled’ political and religious expression. Much of the critical commentary that followed the case is overblown. In some respects, the case is somewhat less legally significant, and less legally controversial, than the commentary would suggest. Underlying some of the resistance to the decision is a sense that the Court should have manipulated the legal test of unlawful discrimination to reach a morally satisfying result. This is not how the Court should decide such cases, leading as it does to a severe rupture with the idea of legality and the Rule of Law. In any event, the three (moral) arguments that are drawn on—dignity, equality, and conscience-scepticism—are less helpful that might appear in addressing Ashers-type cases, and do not undermine the normative foundations of the Supreme Court's decision.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"7 1","pages":"238-270"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61387633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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