New Proposed European Anti–Discrimination Directive—A Threat to Religious Liberty in the UK and Across Europe.
There is a new proposed European Directive which is rapidly in the process of going through the various stages of the European Parliament. This proposed Anti-Discrimination Directive prohibits discrimination and harassment on the grounds of disability, age, sexual orientation and religion or belief for:
social protection (including social security and healthcare);
social advantages;
education;
access to and the supply of goods and other services that are available to the public, including housing (applying to individuals only insofar as they are performing a professional or commercial activity).
Seeking to prohibit discrimination on grounds of disability and age is not contentious. However, it is of concern that the proposed Directive includes sexual orientation and religion or belief.
Lessons from the EU’s Employment Discrimination Directive
It might be thought that the Directive would enhance religious liberty. However, the implementation of the Employment Discrimination Directive 2000 has given cause for concern. As a result of that Directive, a Bishop of the Church of English was successfully sued by a homosexual when he was refused a position as a youth minister. A British Christian charity was also successfully sued for refusing to promote an atheist support worker.
Removal of Rights of Conscience
The new Directive could remove freedom of conscience for those whose religious beliefs prevent them from endorsing certain homosexual and religious practices. For example, a Christian architect should not be required to design a mosque. A Christian publication should not be required to advertise events or organisations that promote homosexual activity.
We are concerned that the Directive could remove Christianity from public services. For example, a patient of another faith or belief should not be able to sue a hospital because there is a Bible in the bedside locker. Local councils and schools should not be intimidated into cancelling Christmas carol services.
Promotion of Homosexuality
In the UK, similar legislation has been widely interpreted so as to require the homosexual lifestyle to be promoted by public services. Adoption agencies who received public funding and did not believe in placing children with same-sex couples have had to close. Foster parents have been removed from council registers because they are not willing to promote homosexuality to their children. Only the threat of legal action has led to their reinstatement.
Harassment
The damage that the harassment laws could do to free speech is of deep concern. Unlike the criminal offence of harassment, the “harassment” provisions in EU law will have a very low threshold and will therefore be easier to prove against those who may not have intended to harass. Thus, the mere explanation of religious beliefs regarding homosexuality to a homosexual, or a Christian communication of some sort of religious beliefs to those of another faith may be interpreted as amounting to harassment. “Harassment” in the proposed Directive is judged from the subjective perspective of the person alleging the harassment and how they felt about the words or actions, rather than from the objective perspective of a bystander, who might not have seen the words or actions as intended to cause harassment.
The loose wording of the new EU harassment law leaves huge scope for bogus and trivial complaints that will limit freedom of speech and religious liberty.
The sexual orientation regulations in England and Wales that we campaigned against did not include harassment. Unfortunately, the parallel regulations in Northern Ireland did contain harassment, but the High Court in Northern Ireland struck out the harassment provisions.
As a result of a UK Government consultation regarding a forthcoming Equality Bill that attracted around 4,000 responses from a wide range of stake-holders, the Government decided not to extend protection against “harassment” on the grounds of sexual orientation or religion or belief to cover life outside work, because they did not see evidence of a real need to do so.
Exemptions
Article 3 of the draft Directive contains exemptions for religious schools and churches and other organisations based on religion or belief. However, it is not clear whether the exemption for religious organisations is aimed only at protecting existing laws that guarantee religious freedom, or whether it allows Member States to introduce new protections when implementing the Directive. The definition of “religious organisations” that are protected by the exemptions is also unclear.
Where church-based groups hire out facilities to enable them to run social activities, the religious exemptions will not protect them.
Where religious organisations provide welfare and care, a potential claim for discrimination could be made against the organisation for refusing to condone same-sex activities e.g. refusing a double room in a Christian care home to a same-sex couple.
Balance of Rights
The proposed Directive has profound implications for the fundamental rights of European citizens to freedom of religion. The Directive and the accompanying documents do not appear to have properly considered the need to have mechanisms to balance conflicting fundamental rights with each other. Without this balancing exercise, the fundamental rights of Christians are often “trumped” by the rights of other religious groups or those of homosexuals so that there is a very real risk of indirect discrimination against religious believers. In our opinion, the absence of the word “morals” (which is found in Articles 8(2), 9(2), 10(2) and 11(2) of the European Convention on Human Rights), from the balancing recital in the Directive is symbolic of the changes being made.
It is essential that religious beliefs and the rights of the homosexual community are properly balanced against each other, otherwise well-meaning initiatives such as the proposed Directive will themselves become instruments of discrimination or oppression. There are many unanswered questions for religious organisations and individuals as to the compatibility of the proposed Directive with the ECHR, the EU Charter of Fundamental Human Rights and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN General Assembly Resolution 36/55. The religious freedom of its citizens is the hallmark of a democratic society and a core value of modern human rights law.
Including Fundamental Rights within Article 3
An explanation of the Directive has stated that the prohibition of discrimination should go hand in hand with other fundamental rights and freedoms such as freedom of religion. Yet these fundamental rights are only in a Recital, not in the Articles, which are the main part of the Directive. A recent European case ruling on the principle of equality overruled Recital 22 of the Employment Directive and it is of concern that this may create a future precedent for overruling Recitals in other Directives. (See Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, paragraph 60 at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0267:EN:HTML)
There are many different European Parliamentary Committees considering this proposed Directive, but the main one is the Libe Committee. The current proposed Directive can be found at the following link (from page 13):
http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/com(2008)426_/com(2008)426_en.pdf.
Amendments and Approximate Timetable
There have been many proposed amendments put forward by the various Committees and individual MEPs to this proposed Directive. These amendments will be considered by the Libe Committee on 17th February 2009 and may be voted upon by that Committee on 16th March. European Parliamentary parties (but not individual MEPs) may then put down further amendments. MEPs are expected to vote on the Directive in the European Parliament some time after that. After that time the Directive will be considered by the Council of Ministers and unless there is a national veto, the Directive will then be passed and is entered into the official journal.
We do not know what the final Directive will say. However, there are a large number of amendments already proposed by a Committee that may make the Directive even worse. These include amendments that would even remove the fundamental rights and freedoms from the Recitals. There are also proposed amendments to destroy any special status that the Member States may accord to marriage, stating that where types of relationship other than marriage are recognised as equivalent to marriage under national law, the “principle of equal treatment” should apply. The purpose of discrimination law is to protect fundamental rights, not to promote the agenda of particular groups, or to create a hierarchy of rights where religious freedom—a core human right which should not be trampled upon—is demoted below other rights.
There have already been numerous examples of how existing equality and diversity laws in the UK have led to the infringement of religious liberty. For example, see the cases described on the Christian Legal Centre Website: http://www.christianlegalcentre.com.
Let us pray to God for a miracle, as Christian European Citizens of all European nations contact their MEPs so that the Member States overwhelmingly reject this proposed Anti-Discrimination Directive and restore the original proposal to remove both sexual orientation and religion or belief from the Directive.
What happens in Europe is of fundamental importance, because Directives create legal obligations that are binding on all European countries. According to European Law, once passed a Directive should not be contradicted by national law. Please prayerfully consider writing to your MEP in your own words, using the material in this paper to help you.
Link for finding UK MEPs:
http://www.europarl.europa.eu/members/public/geoSearch/zoneList.do?country=GB&language=EN
Link to find MEPs by country: