High Court rules against McFarlane & confirms meaning of discrimination
A relationship counsellor, sacked by Relate Avon for refusing to give sex therapy to same-sex couples, has had his legal challenge turned down.
Gary McFarlane, who was sacked in 2008, claimed Relate refused to accommodate his religious beliefs.
Lord Carey, the former Archbishop of Canterbury, had called in a witness statement for judges with a “proven sensitivity and understanding of religious issues” to hear the case.
Referring to the case of London Borough of Islington v Ladele [2009] EWCA Civ 1357, in which a registrar refused on religious grounds to perform civil partnership ceremonies, Lord Carey said the field of sexual ethics and Christian teaching was complex, and it was “regrettable” that senior members of the judiciary felt able to make disparaging comments and to use the “unbefitting” descriptive word, “discriminatory”.
Delivering his judgment in McFarlane v Relate Avon however, Lord Justice Laws called Lord Carey’s views “misplaced” and “mistaken”.
“The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as ‘disreputable’,” he said.
“Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.”
Laws LJ said McFarlane could not “sensibly” be distinguished from Ladele.
“The promulgation of law for the protection of a position held purely on religious grounds cannot...be justified,” he said.
“It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary.”
Philip Henson, head of employment law at Bargate Murray, says: “I doubt that this will be the end of the road for Mr McFarlane, as he has become exalted by the media as one of the ‘persecuted Christians’ as enounced by Lord Carey. “Prior to [this] hearing, the Employment Appeal Tribunal took into consideration the equal opportunities policy of Relate and also the code of ethics and principles of good practice of the British Association for Sexual and Relationship Therapy. No doubt the court would have placed a similar emphasis on those documents.”
