The Christian Legal Centre’s Roger Kiska comments on the case between Wilberforce Academy and Fitzwilliam College, making clear the law on letting places to religious and secular entities.
Last week, Christian Concern sought permission to judicially review the decision of Fitzwilliam College, Cambridge, to reject its week-long booking for our annual Wilberforce Academy on the basis that the Christian beliefs espoused by the Academy were not compatible with the ‘inclusive’ values of the College. This was not the first time the Academy has faced booking cancellations at Cambridge University colleges under similarly dubious circumstances. Cancellations have also taken place at Oxford University colleges.
The cancellation raises serious questions about how UK anti-discrimination law protects Christian organisations from the cancel culture, if at all. On the other side of the equation, some churches and Christian ministries may be wondering how the case against Fitzwilliam College may affect their ability to reject events on their premises because they contravene the Christian principles of the ministry in question. This article will address these two questions in turn.
After initially accepting the booking of the Wilberforce Academy in January 2022 for its September 2022 conference, the College quickly recanted its acceptance after receiving the Academy’s booking form which stated the purpose of the event and that: “As a Christian organisation, Christian Concern holds to the traditional historic Christian understanding of marriage and sanctity of life, in line with mainstream orthodox Christianity and the Church of England.”
The following day, Wilberforce Academy organisers received an email from the College’s Head of Catering and Events, Robert Clarke, stating that the College was reneging on its earlier initial acceptance. The email read in relevant part: “After careful consideration the College has decided not to accept the booking on the grounds that the event is not compatible with the Values of the College.” In a phone call the day after that, Mr Clarke went even further in defending the cancellation by stating that the Academy was perceived to not be ‘inclusive’, that it did not believe in gay marriage, and that Christian Concern’s general beliefs were “not compatible with the values of the College.”
Following oral arguments on 15 September 2022 before Sir Ross Cranston J, the High Court ruled that Christian Concern could transfer their case to the County Court and pursue it there.
The law on letting premises for universities and colleges
Secular institutions, particularly those of Higher Education providers, which let their premises for outside speakers and events essentially have two pieces of legislation with which they must comply. Section 43(1) of the Education Act 1986 creates an overarching duty on Universities and Colleges to take such steps as reasonably practicable to ensure that freedom of speech within the law is secured for members, students, employees and for visiting speakers. Section 43(2) reads:
“The duty imposed by subsection (1) above includes in particular the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—(a) the beliefs or views of that individual or of any member of that body; or (b) the policy or objectives of that body.”
The application of Section 43 to the Fitzwilliam situation is obvious on the plain reading of the terms that the Wilberforce Academy received in its rejection correspondence and follow-up phone call. Were it not for the Biblical views of Christian Concern, or how those views are perceived publicly, the Wilberforce Academy would not have had its booking rejected.
Similarly, the Equality Act 2010, at Section 29, prohibits a service provider, which would include the letting of facilities, from discriminating against anyone on the basis of their religion or belief: (a) as to the terms on which A provides the service to B; (b) by terminating the provision of service to B; or (c) by subjecting B to any other detriment. For the avoidance of doubt, the belief that marriage is the lifelong union of one man and one woman, including the rejection of same-sex marriages, is a protected religious belief. The catch-all used by Fitzwilliam College as to the ‘general beliefs’ of Christian Concern is nothing short of an explicit admission of discrimination on the basis of religion or belief.
How does anti-discrimination law apply to churches and ministries?
Many church and ministry leaders may be concerned about how anti-discrimination law may apply to the letting of their premises for events, as the revenue from letting is often a vital part of maintaining a vibrant ministry. Although the law is far from straightforward, Christian leaders should be comforted by the fact that in many cases, refusing a letting would not be discrimination.
Let’s begin with the question of religious associations, which is less straightforward than how the law is applied to churches and religious organisations. Schedule 16 allows single characteristic associations, including those which are Christian, to let facilities to groups or individuals which share their Christian ethos. The exception for associations, however, is quite narrow as it does not allow Christian associations to pick and choose between non-Christian service users as to who can and cannot let their facilities. Once the association opens their facilities for outside letting to the general public, their exception under Schedule 16 is lost.
Churches and religious organisations, however, have greater leeway in how they decide to let out their facilities. Schedule 23 of the Equality Act allows churches and religious organisations the right to reject lettings on the basis of sexual orientation or difference of religion or belief if the purpose of the organisation is: (a) to practise a religion or belief; (b) to advance a religion or belief; (c) to teach the practice or principles of a religion or belief; (d) to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief; or (e) to foster or maintain good relations between persons of different religions or beliefs.
The letting exemption applies to other religions or beliefs if the rejection of the letting is done because of the purpose of the organisation or to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief. The ability to reject letting facilities on the basis of sexual orientation is possible where it is necessary to comply with the doctrine of the organisation, or to avoid conflict with strongly held convictions of a significant number of the church or religious organisation’s followers.
The biggest caveat to the schedule 23 exception is where the purpose of the organisation is solely or mainly commercial in nature. This can become an issue, for example, where a church lets out facilities under a different legal entity then that of the church. If the premises are under the same legal umbrella however, and it can be shown that the lettings largely support the ongoing ministry rather than being a primarily commercial enterprise, then a strong argument is made that the exceptions should apply.
The Ashers Bakery question
Perhaps the most illuminating case in the last 5 years with respect to finding the appropriate balance between anti-discrimination law and religious exercise has been the Ashers Bakery case in Northern Ireland, eventually being decided by the United Kingdom Supreme Court in favour of the Christian bakery. It is of note that the case was brought by the Equality Commission of Northern Ireland, essentially making the challenge state sponsored. Its applicability to letting of facilities, as will be discussed later, is still an open question.
In May 2014, the claimant, Gareth Lee, who works with the LGBT organisation QueerSpace in Northern Ireland, sought to purchase a cake with a message marking the International Day Against Homophobia and Transphobia. He placed an order with Ashers Bakery, a Christian business, wishing to have a cake made with depictions of Sesame Street’s Bert and Ernie with the slogan “Support Gay Marriage”. It was not in dispute that Mr Lee had been served in the past by the bakery without issue while ordering confections which did not have a pro-LGBT message on them. While the store initially accepted the order, Mr Lee was later called back by Ashers Bakery co-proprietor Karen McArthur who informed the claimant that as a Christian ethos business, they would not fulfil the order and that it should not have been accepted in the first place.
The Supreme Court
The Supreme Court overturned both the lower court and Court of Appeal, which had both found in favour of the Claimant. Lady Hale, writing on behalf of the majority, summarised her position thus:
“In reaching the conclusion that there was no discrimination on grounds of sexual orientation in this case, I do not seek to minimise or disparage the very real problem of discrimination against gay people. Nor do I ignore the very full and careful consideration which was given to the development of the law in this area, to which Mr Allen QC drew our attention at considerable length. Everyone, as article 1 of the Universal Declaration of Human Rights put it 70 years ago is ‘born free and equal in dignity and rights’. Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”
The Court held that this could only be a case of associative discrimination or it could be nothing. In so ruling, it rejected the lower courts findings that the message of the cake was indissociable from Mr. Lee’s sexual orientation. The nexus, Lady Hale argued, was too remote to find discrimination based on the claimant’s sexual orientation. “In a nutshell,” she argued, “the objection was to the message and not to any particular person or persons.”
While the Supreme Court’s clarification is a helpful one with regard to service provision, perhaps signalling the court’s greater appreciation for balancing sexual orientation and religious belief, the spirit of the decision has yet to be fully appreciated or clarified in case law. Its extension to the letting of facilities remains an open question. On the one hand, Section 31 of the Equality Act 2010 defines the provision of services to include the letting of facilities which suggests that if a Christian ethos business objected to the message of the letting party rather than the sexual orientation itself of the letter, then Ashers could apply. If the proposed service user for example wanted to let the premises for a same-sex marriage or an event to promote a cause which undermined the beliefs of the service providers, this would be wholly different then rejecting someone on the sole basis that they were gay or of a different religion.
While this reading of Ashers makes sense, the biggest obstacle it would face before the courts is the very explicit subsection in Schedule 23 which removes the exception allowing for discrimination on the basis of sexual orientation and religion or belief where the purposes of the organisation are solely or mainly commercial. Even then, however, the reasoning of Lady Hale still applies; opposition to the message is not the same thing as discrimination on the basis of the protected characteristic involved.
Making the law clear: colleges vs churches
At the end of the day, the nuances involved in applying anti-discrimination law can be complicated and convoluted. So much so that our courts continue to struggle with how and to what extent anti-discrimination applies in everyday life. Nevertheless, what is clear is that there is a world of difference between rejection of a letting application by a secular College because of the deeply held religious beliefs of the conference organisers, and the conscientious objection of a church or religious organisation to letting their premises to an event which violates religious doctrine or causes offence to the members of that faith group.