Catholic Care: appeal: discrimination against homosexuals

http://www.judiciary.gov.uk/Resources/JCO/...nt-02112012.pdf

The link is the to the judgement of the appeal tribunal in a case where the catholic adoption service sought to establish a right to discriminate against homosexuals in their service.

Let me first say that I do accept that my pleasure in reading legal judgments is something of a minority taste: but I honestly do find them interesting and impressive, for the most part. That said, I will not be surprised if nobody else feels like reading this. So let me try to summarise

The law in this country changed to outlaw discrimination on grounds of a range of protected states: including sexual orientation. Before the end of 2008 it was legal for the charity Catholic Care to refuse to offer its adoption service to homosexuals: after that it was not legal unless the charity could establish grounds under specific provisions allowed in the Equality Act for charitable institutions.

The catholic church has sought to establish such grounds, and its case was rejected at the first tier tribunal: This is the judgment following their appeal against that decision. As with many tribunal systems this second tier must found on an error of law: the first tier is the fact finding body and so this appeal can only succeed if it can be shown that the tribunal erred in law; or was irrational in its approach to the facts; or perverse in its finding on the basis of those facts.

The appeal has been dismissed: I do not know if there is a third tier in this particular setting, though there sometimes is: if there is it will also rest on matters of law, I think

The charity's case is essentially that if they are not allowed to discriminate against homosexuals their service will close permanently, and this is because the funding they rely on will not be forthcoming. This is because the catholic church will not support fundraising efforts. In turn this will mean that fewer children in need of adoption will be placed, and that outcome constitutes a serious and weighty matter sufficient to overturn the wider aim of the legislation, which is to ensure there is no unwarranted discrimination

What I like about such judgments is the way they tease out the various issues, and this one is no exception. In the end the appeal was dismissed because there was no evidence that the original tribunal had erred in law: but in deciding that the appeal body addresses a number of arguments put forward by both sides. In particular it determines that there is no evidence to support the contention that fewer children will be placed: and that is because there is a surplus of prospective adopters in the voluntary sector due to the way such things are financed.

The judgment covers a number of contentions and it acknowledges, for example, that a wish to promote the "Nazarene" conception of the family is a legitimate strand in our society. I mention that because I have had discussions on other boards (about gay marriage, mainly) where it has been claimed that such aims are not taken into account. They are: they are just not trumps.

It is instructive to read what the law actually says and how it is actually interpreted: it does away with a lot of the more speculative arguments and helps us to see that the rule of law normally does address such considerations. I find it helpful to remember that

More than 1000 catholic priests, abbots and other senior figures in the church have signed a letter sent to the Daily Telegraph. The letter claims that should the government allow same sex marriage, it will result persecution of catholics. They take the view that this law, in combination with equality legislation and other provisions, will mean that they will face disciplinary action "if they refuse to promote same sex marriage" in schools, hospitals and other public services.

The letter suggests that this is no less than a return to the penal laws in this country which existed in the past and excluded catholics from certain professions (including the monarchy) and in some instances prevented them meeting for worship. They say this is not "exaggerated"

It is astonishing to me how very dishonest these people are prepared to be, because this is nothing at all to do with same sex marriage. If there is a problem it is with the equality laws, and those are already in place.

Note the language: there is no requirement on anyone to "promote" same sex marriage, though that was the language used in the infamous "clause 28" which prevented local authorities from "promoting homosexuality" or promoting "the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship". The catholic church had no quarrel with that disgusting piece of legislation, which was mercifully repealed in 2000 in Scotland, after being in force for 12 years.

It seems to me that these celibate men are obsessed with what other people do with their genitalia: nobody is making them participate; nobody is in any doubt about what they think of homosexuality; nobody is demanding they deny their beliefs; nobody is suggesting that homosexuality should be "promoted". I have never seen an offer to "buy one homosexual relationship and get another one free", for example. See? I can abuse language just as well as they can

I have no patience with this scaremongering and I do not think it is responsible. I think it is time we had a law against "promoting delusions of persecution"