According to the Catholic bishops of England and Wales, in giving evidence to parliament on the Equality Bill 2008-9 (see: http://www.ekklesia.co.uk/node/9558), "unjust discrimination is fundamentally wrong." But does this terminology not imply there might be another category of "just discrimination" which is slightly less awful, or even in some circumstances righteous?
Anglican and Catholic church representatives, giving evidence to a parliamentary committee recently, were very concerned that a new definition of "the purposes of an organised religion" would curtail their own existing right to discriminate against lay people for reasons other than religious belief.
William Fittall, Secretary General of the Church of England’s General Synod, was one of those who addressed MPs. He said: “A faith organisation is entitled to look at the totality of someone's life. The distinction that is drawn in most employment situations between private life and the workplace does not hold where people have a representational, pastoral or teaching role.”
The position of a church youth worker was cited several times as an example of such a role, no doubt with the recent tribunal case of Reaney vs Hereford Diocesan Board of Finance in many people's minds. (See: http://www.ekklesia.co.uk/node/5462 - 'Call for bishop's resignation after gay dicrimination verdict')
But this is not just about sexual orientation. Existing equality regulations already give religious organisations a pass for various other reasons, including the circumstances in which a marriage came to an end, gender (female bishops are not compulsory) and marital status itself.
Fittall declared: "You might believe that some of our rules and disciplines are wrong, but our view is that that is a matter of religious liberty – a matter for the Church of England, Roman Catholics, the Jews or whoever."
He added: "We are not seeking carte blanche, but if a religious organisation is employing someone in a role for which you have to be a member of that faith, it is reasonable that restrictions – whether they be on marital history or whatever – can be part of the requirements."
However, the government – and many others – do not accept the churches' claim that the draft bill changes the existing law. Vera Baird, the Solicitor General, made it clear that she did think this to be the case, noting that license for discrimination "must be as narrow as possible".
When I asked Maria Eagle, Minister in the Government Equalities Office, about this at a conference last month, she said that the clarification of language was simply to reinstate the original meaning, which "had been over-interpreted by some".
The Trades Union Congress (TUC) welcomed the new wording, and reminded the committee that: "A group of trade unions challenged this provision in a judicial review case and the court, while upholding the provision, had explained that it should be interpreted to apply to a narrow range of jobs, such as clergy positions and the tests it contains should be applied objectively. The amendments made in the bill reflect the court's judgement."
The TUC also questioned whether the exemption is needed at all, given the separate and generally uncontroversial exemption in the next clause. This allows any "employer with an ethos based on religion or belief to impose a membership requirement for an employee if to do so is 'a proportionate means of achieving a legitimate aim'".
The problem with that seems to be that churches, unlike unions, are not willing to define their membership requirements so as to exclude those whose behaviour is not as exemplary as they would wish.
There also seemed to be little support for the churches from their religious colleagues on the witness panel. Indeed Maleiha Malik, speaking for the Muslim Women's Network said: “I do not think that there is any evidence that there is a narrowing, but, like the British Humanist Association, we would very much welcome and strongly support any narrowing of the exemptions, for the following reason. The way the exemptions strike the balance between the rights of organised religion to discriminate and the rights of individuals to be free from discrimination is deeply unfair. It gives too much power to organised religions to police their internal members.”
A lot of people will agree with that sentiment. But is this what the churches mean by "just discrimination"?
© Simon Sarmiento is the founder of the Thinking Anglicans (http://www.thinkinganglicans.org.uk/) website. He used to work for Logica, based in London and has established and maintained a range of official Anglican websites. He writes for the Church Times and other secular and religious news outlets.
This article is adapted, with kind acknowledgements, from one that appeared recently on Guardian Comment-is-Free (http://www.guardian.co.uk/commentisfree).
Ekklesia's briefing on the Equality Bill is here: http://www.ekklesia.co.uk/node/9558