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These amendments should stay

February 6, 2010

At the beginning of the week Jonathan Bartley argued here, as he routinely does via his Christian think-tank Ekklesia, against recognising churches' legal right to hire staff according to their own beliefs. He didn't frame it in that unflattering way, of course. Instead he tried to justify the significant curtailment of corporate religious freedom his view implies by appealing to an unanswerable claim: that Christian love mandates treating people inclusively, with equal regard. Well he's right about that. But he simply bypasses the question of what equal regard actually means in practice. A moment's thought reveals that equal regard can't possibly mean treating every individual identically. Jesus certainly wasn't being very "inclusive" in castigating the oppressive religious leaders of his time as "whitewashed sepulchres", or turfing out the corrupt money-changers from the temple. Acts of justice are acts of discrimination and exclusion. Anti-racist laws rightly exclude racist behaviour: that's their particular way of showing equal regard love to people of colour. A coherent idea of discrimination requires a substantive account of justice, and that includes defining what legitimate rights individuals and organisations actually possess. All British citizens properly possess the prima facie individual right not to be discriminated against, in matters like employment, housing and social services, on grounds of race, gender or sexual orientation. This is because these involuntary markers of identity are completely irrelevant to such matters. I said "prima facie" because even here there exist widely recognised and uncontroversial exceptions, often arising from the rights of organisations. A rape crisis centre surely has the right to discriminate against men when hiring its counselling staff (perhaps any staff). An African-Caribbean community centre obviously can't be compelled by law to hire a white guy like me as its director. The Labour party is evidently entitled to discriminate on ideological grounds in hiring its research staff. These are all examples of what the law calls a "genuine occupational requirement" (GOR). The idea is simple and compelling: every independent civil society organisation has a prima facie right to maintain its identity and mission by hiring staff who will support the distinctive purposes of the organisation and uphold its raison d'etre. This isn't a "privilege", as is often tendentiously suggested, but merely a condition of meaningful self-government. Why then cry foul when religious organisations exercise their right to invoke the GOR provision? Why single them out and deny them the same rights enjoyed by others? Yet when they claim such a right, critics like Bartley routinely accuse them of seeking to claim "the right to discriminate". But this is nothing more than a rhetorical ploy concealing a conceptual sleight of hand. Of course churches are defending their right to discriminate in hiring, but this is nothing other than the right his own organisation would claim if a militant atheist sued Ekklesia for refusing to hire her. Bartley is fully entitled to argue that, from a Christian point of view, churches should not restrict staff positions to those who, for example, maintain traditional views of sexual ethics. That's an argument to be conducted within (or at least addressed to) the churches. But he is not entitled to call upon coercive law to force churches to conform to his views of sexual ethics, getting the state to succeed where he has failed. It's incredible that such a position should be advanced in pursuit of the principle of equal regard. So, unpalatable though it may be for some, Benedict XVI turns out to be right on this one: the equality bill, exemplary in many ways, should not be used as a Trojan horse to undermine the right of religious organisations to govern their own internal affairs. As political theorist Michael Walzer has argued, justice is complex, not simple; equality requires many things not just one thing. At least, it requires both equal individual rights against irrelevant discrimination and equal organisational rights to self-government. Happily, the House of Lords has seen sense on this and amended the bill in a way that brings these two classes of rights back into the balance established in 2003 (which was already quite restrictive). Contrary to what Terry Sanderson wrote on 26 January and as Ekklesia has also claimed, it has not granted an extension of rights to religious organisations. It would be foolish, mean-spirited and wrong-headed for the government to seek to overturn these modest and sensible amendments.