Anti-Discrimination “Equality” Law Exemptions Do Not Lead to Fairness for All: An International Perspective

In recent years, almost all Western nations have adopted anti-discrimination equality legislation. At first glance, this seems like a good idea. After all, who could be against equality?

As the United States considers Nancy Pelosi’s Equality Act, it is worth pausing to survey the other Western countries that have already gone down this path.

Acceptance without Exception

Consider the following story. Peter and Hazelmary Bull were an elderly retired couple who operated a small guest-house out of their home in the south of England. Their longstanding policy, in place since the 1980s, was to rent double rooms only to married couples. As Christians, they believed that renting shared rooms to unmarried couples would violate their convictions about sex and marriage.

In the mid-1990s, an unmarried heterosexual couple was denied a shared room. The incident made it into a national newspaper, which mocked the Bulls’ policy as out of touch. The unmarried couple quickly found another guest-house, and that was the end of the matter. Many other unmarried couples had also received the same response over the years.

Fast forward to 2008. After the adoption of equality legislation in the United Kingdom, the Bulls received a letter from an organization called Stonewall—the UK’s leading LGBT organization, whose slogan is “Acceptance without Exception”—warning them that they were breaking the law. The following month, as if by coincidence, a same-sex couple turned up at their doorstep and were denied a double room. This time, the police were called, and the Bulls were sued.

The Bulls did not qualify for a religious exemption to the equality legislation, and the fact that they applied their policy equally to same-sex and opposite-sex couples was considered irrelevant. They received hate mail and death threats, and their property was vandalized. After being dragged through the courts for five years, their guest-house business (which was intended to fund their retirement) was ultimately destroyed. Peter Bull passed away in 2016, having spent the last years of his life battling the onslaught of “Acceptance without Exception.”

It is impossible to look at this case and claim that equality has been achieved. Instead, in this case as in so many others, an equality law was used as a sword to attack already marginalized citizens, rather than as a shield to defend them.

Do Exemptions Solve the Problem?

Equality laws are normally limited to employment settings and the provision of goods and services. Such legislation generally contains a list of “protected characteristics,” and any claim of discrimination must involve one of those characteristics. From the 1960s through the mid-1990s, equality legislation included protected characteristics such as race, sex, and disability. In recent decades, equality laws have expanded to include “religion or belief” and “sexual orientation” as protected characteristics. Now, “gender identity” is being added to the list.

A major challenge then presents itself. Sexual orientation is a protected characteristic. Unfortunately, it has been universally conflated with sexual conduct by the courts. Religion is also a protected characteristic, and many religions, including Christianity, contain clear teaching on sexual conduct. While Christians seek to treat everyone with equal dignity and respect, this does not mean they can condone, support, or facilitate all actions and behaviors.

Hence, if religious believers act on their convictions by refusing to support conduct which they believe to be wrong, they may be accused of discrimination. If they are prevented from acting in such a way, they themselves will feel discriminated against. With such an obvious conflict established in the law, a hierarchy of rights becomes inevitable.

Over the years, legislators have sought to balance the competing interests established through equality law by providing exemptions for religious organizations. The exemptions normally allow churches and faith-based non-profits to uphold moral codes of conduct and to hire and dismiss accordingly. They also allow such organizations to limit the services they provide. Under such a framework, exemptions permit those engaging in otherwise unlawful conduct (such as taking applicants’ religious beliefs into account when making hiring decisions) to avoid punishment by the government.

There are at least three problems with such an approach.

Freedom as an Exemption

First, exemptions diminish the free exercise of religion. Religious freedom is a preeminent right and the cornerstone of democracy. Yet equality laws and exemptions teach the public that religious freedom is something to be tolerated under very limited circumstances. It is described as a “license to discriminate,” a “loophole for discrimination,” or an “unjustifiable privilege.”

A recent government-commissioned report in Australia concluded that “a right to discriminate in the provision of goods and services is not required to ensure the free and full enjoyment of Australians’ right to freedom of religion under international law.” Framing religious liberty in this way—as a “right to discriminate”—has become common. As Lady Hale, President of the Supreme Court of the United Kingdom, recently stated, “some religious beliefs may lead people to want to discriminate against people with some other characteristic to which the law gives protection, such as their race, their sex or, most notably these days, their sexual orientation.”

If we accept the idea that religious freedom is a priori discriminatory and can only be permitted under an exemption, the public’s attitude towards that once sacrosanct freedom will be forever changed.

Exemptions Are Narrow

Second, exemptions are, by definition, limited. They do not cover every scenario in which citizens may seek to exercise their fundamental right to religious freedom.

For example, exemptions under the UK’s Equality Act do not cover organizations “whose sole or main purpose is commercial.” They do not apply to Christian printers, bakers, photographers, guest-house or wedding-venue owners, and so forth. The rule for such people is clear: if you want to sell something to any person for any purpose, you must do so to everyone for every purpose, even if doing so violates your conscience. This is an ironic message in the age of “corporate social responsibility” and other such cries for morality in business. These extreme laws are being strictly enforced. In Poland, for example, a Catholic printer was recently criminally convicted for refusing to print a banner with a pro-LGBT message.

Similarly, many exemptions do not apply to organizations that receive public funding or engage in public services. This means that educational and medical establishments, such as religious schools and hospitals, are not exempt. In the United Kingdom, all Catholic adoption agencies have been closed, simply because they sought to continue their longstanding practice of placing children with married moms and dads. As the head of the UK’s Charity Commission, the governmental body that regulates charities, explained:

In certain circumstances, it is not against the law for charities to discriminate on the grounds of sexual orientation. However, because the prohibition on such discrimination is a fundamental principle of human rights law, such discrimination can only be permitted in the most compelling circumstances. We have concluded that in this case the reasons Catholic Care have set out do not justify their wish to discriminate.

It was universally agreed that the Catholic adoption agencies were doing a great job, and their policies had not changed in decades. Yet once the equality law was passed, the head of the UK’s Charity Commission described Catholic Care’s religious freedom as a “wish to discriminate” and declared that the newly created right to non-discrimination on the grounds of sexual orientation was a “fundamental principle of human rights law.”

Exemptions are also limited in the employment setting. For example, it is true that churches in most Western countries maintain control over the hiring and dismissal of their ministers. However, it is far harder for faith-based non-profits to insist that their employees adhere to the teachings of their religion. In the European Union, a nondiscrimination law from 2000 insists that there must be a “genuine, legitimate and justified occupational requirement, having regard to the organization’s ethos” in order to make hiring and dismissal decisions based on the religious beliefs of the applicant. This is a difficult threshold to reach, and one that is ultimately interpreted by the courts. When the UK’s equivalent of this exemption was tested, the employment tribunal held that refusing to hire a homosexual youth leader was discriminatory—even when the employer in question was the Church of England.

Exemptions Become Even Narrower over Time

Third, exemptions are always vulnerable to future narrowing, either through legislative amendment or judicial interpretation. Indeed, no sooner are exemptions adopted than the demands to have them narrowed or removed begin. This makes sense, because if religious freedom is framed at the outset as government-tolerated discrimination, over time the pressure will increase to remove the exemptions. A “license to discriminate” can only be tolerated for so long.

Just do a quick internet search of the phrase “remove religious exemptions,” and you’ll find headlines like these: “Unions seek to end religious bodies’ right to discriminate in hiring” (Australia); “Proposal to remove religious exemption from Irish employment equality law” (Ireland); and “The Church of England should lose its exemption to discrimination laws” (UK).

Following Australia’s legalization of same-sex marriage, former Attorney General Philip Ruddock headed a Religious Freedom Review to examine whether Australian law adequately protects religious liberty. The review has led to much debate about limiting existing exemptions. The Human Rights Law Centre argued that “out-dated laws allowing religious organisations to discriminate . . . should be repealed.” Amnesty International claimed that “Organisations which receive public funding to provide education or services should not be exempt from anti-discrimination laws.” The review ultimately recommended limiting existing exemptions for faith-based schools and preventing exemptions from applying to the provision of goods and services. At the end of 2018, Prime Minister Scott Morrison vowed to change laws to limit the exemptions for faith-schools, in a move that received bipartisan support.

Moreover, regardless of the will of the legislators who pass equality legislation, exemptions can be dangerously narrowed through judicial interpretation. In Australia, a Christian youth camp was sued after it declined a booking from a group espousing views on sexuality that contradicted the teaching of the camp’s denomination. Although exemptions existed in law to protect the denomination, they were construed narrowly by the courts. Writing for the majority, Hon. Justice Maxwell held:

Adherents to a religion must be able to insist that their place(s) of religious observance be used for—and only for—the propagation of doctrines and principles to which they subscribe. The Resort does not, however, have the character of church premises.  It is not a place of religious observance. Nor is the accommodation business a religious activity in any relevant sense.

Accordingly, the Christian camp was held to have directly discriminated on the grounds of sexual orientation.

In Europe, the Court of Justice of the European Union recently interpreted a religious exemption in such a way that it did not apply to a Catholic hospital in Germany that dismissed a Catholic doctor due to his remarriage after a divorce. As one commentator noted, the German court “ruled that firing a baptized Catholic from a Catholic institution for violating Catholic teachings constitutes religious discrimination.”

In Canada, the Supreme Court recently ruled against Trinity Western University (TWU)—a Christian university that sought to require students to abide by traditional Christian teachings on sexual conduct. Although the case did not involve the direct interpretation of an exemption, the Supreme Court’s reasoning illustrates the “all or nothing” approach that comes with modern drives for “equality.”

TWU asserts that LGBTQ students will suffer no harm to their dignity or personal identity while enrolled at TWU because the Covenant requires all members of TWU’s community to “treat all persons with dignity, respect and equality, regardless of personal differences.” . . . However, as this Court recognized . . . it is not possible “to condemn a practice so central to the identity of a protected and vulnerable minority without thereby discriminating against its members and affronting their human dignity and personhood.”

It is likely that challenges to Canada’s existing religious exemptions will now follow.

Exemptions Do Not Lead to Fairness for All

Although exemptions are often billed as a compromise, the evidence suggests that they will never be enough to satisfy those who think religious believers are discriminating and getting away with it. The “compromise” soon becomes a zero-sum game with only one winner. Remember Stonewall’s slogan. The goal is “Acceptance without Exception.”

Proponents of religious freedom should treat equality law exemptions with great caution. In theory, exemptions may seem like they protect religious believers. In practice, the evidence of how these exemptions work tells a different story.