April 2010 – Court of Appeal – England
Submitted by Laura Asioli

By way of background, in 2009, two important decisions were made within the ambit of employment law that had great repercussions on an individual’s right to religious freedom. In both Ladele (which was appealed and dismissed by the Court of Appeal) and more recently McFarlane, it was held that where an employer had terminated a Christian employee’s employment contract for refusing to marry same sex couples/refusing to give sex counselling to same sex couples respectively, the employer had every right to terminate such contract. It was held that such employers were within their rights to terminate the employment contracts since the employees were effectively discriminating between clients, something not allowed by the employer’s handbook and moral code. When counsel for the employees raised the issue of religious freedom, the judges dismissed such pleas, finding that views sorrounding marriage were not a core part of a Christian’s religion and the court’s decision did not interfer with the appellants’ right to worship. On Thursday 29 April 2010, a former Archibishop of Canterbury appealed to the Court of Appeal on behalf of McFarlane. Lord Carey argued before Lord Justice Laws that there should be specially constituted panels of judges with a ‘proven sensitivity and understanding of religious issues’ for Christians. Lord Carey pointed out that the Employment Appeal Tribunal’s decision in McFarlane was: “… a short step from the dismissal of a sincere Christian from employment to a ‘religious bar’ to any employment by Christians. If Christian views on sexual ethics can be described as ‘discriminatory’, such views cannot be ‘worthy of respect in a democratic society’. An employer could dismiss a Christian, refuse to employ a Christian and actively undermine Christian beliefs. I believe that further Judicial decisions are likely to end up at this point and this why I believe it is necessary to intervene now…” Lord Justice Laws however described the suggestion to have a specially formulated panel as ‘irrational’ and ‘divisive, capricious and arbitrary.’ Outside of the court, Andrea Williams, director of the Christian Law Centre, said that the judge had ‘misunderstood faith’ and that the ‘judgement could lead to the creation of a religious bar on some jobs.’