The Cornerstone Judgment raises important questions for Christian organisations, such as Edward Connor Solicitors, who are seeking to conduct themselves in accordance with their beliefs, whilst obeying the law prohibiting unlawful discrimination.
The full judgment can be read here. It is lengthy and we have written this article to clarify the key issues and principles, to help those committed to their mission and to honouring the law. The following is a simplified version of the full facts and circumstances to aid this purpose.
Cornerstone is an organisation with a Christian ethos. It exists to help and support Christians seeking to foster children (“carers”). Its services are only provided to Christians (specifically described as evangelical Christians). Pursuant to its Christian ethos and beliefs, it required carers to refrain from homosexual behavior. The Charity Commission had accepted this position as part of Cornerstone’s charitable objects.
The issue before the Court was an Ofsted report that required Cornerstone to amend its policy regarding who could be a carer. Ofsted accepted that Cornerstone was permitted under the Equality Act 2010 to only have Christians as carers (and their argument that it was nevertheless a breach of the Human Rights Act was rejected by the Judge). Ofsted did not accept that Cornerstone could require carers to refrain from homosexual behaviour – taking the position that this was unlawful discrimination on the grounds of sexual orientation.
- Cornerstone’s documents (including their charitable objects) were clear that to be an evangelical Christian required a person to refrain from homosexual behavior.
- The Judge was not persuaded from the evidence that homosexual behaviour took someone outside being an evangelical Christian.
- Cornerstone’s documents were consistent with carers not needing to be married.
- The Judge was persuaded from the evidence that Cornerstone’s practice was that its carers were all in heterosexual marriages.
- Therefore, by asking carers to refrain from homosexual behavior and in practice requiring them to be in a heterosexual marriage, Cornerstone was discriminating against evangelical Christians who were homosexual who wanted to be carers.
The question then was whether this discrimination was unlawful. On this, the Court agreed with Ofsted. The primary reason for this was that Cornerstone’s circumstances took them outside the exemptions that exist and make discrimination in such circumstances lawful.
Key points from the Judgment
Principle 1: The decision relates to the area of providing goods and services, rather than the area of employing staff.
There are separate and additional exceptions that are not relevant when providing goods and services but which can apply when employing people, making discrimination lawful, for example where a role has an occupational requirement (for example, for the post-holder to be a Christian).
The case is therefore not an authority for employment situations. The judge decided that this was not comparable to an employment situation. The principles of the case are therefore more relevant to the issue of whom a charity provides its services to, rather than whom the charity employs to provide those services.
Principle 2: Although Cornerstone made a distinction between sexual behaviour and sexual orientation, the starting point in law is not to make that distinction.
Consistent with earlier judgments, the Judge decided that to treat someone differently because of homosexual sexual behavior, was to treat them differently because of sexual orientation.
This was therefore a case where discrimination based upon sexual behavior was nonetheless discrimination on the basis of sexual orientation.
Principle 3: Had it not been for Principle 4 (below) an exemption would have applied and Cornerstone’s policy would not have been unlawful discrimination.
Schedule 23 of the Equality Act 2010 in certain circumstances permits a Christian organisation to make decisions that take into account the religion/beliefs and/or sexual orientation of service users in deciding whether or not to allow them to receive the service.
In Cornerstone’s case, the Judge held that they would have been able to rely upon these exemptions, meaning that any discrimination was lawful, however…
Principle 4: There is an exemption to the exemption.
Cornerstone was deemed to be operating in a way that meant it was a “public” entity, providing its services pursuant to a contract with the Local Authority.
In such cases, the exemptions in the Equality Act relating to sexual orientation are overridden. Therefore, the discrimination in Cornerstone’s approach was not lawful.
(There are unlikely to be a high proportion of missional Christian organisations that operate in a way that makes them a public entity. Simply providing a service to the public, or having a Local Authority as a client does not mean you cannot rely upon the exemptions).
What steps might churches and Christian organisations need to take in response to the decision?
Although in principle judges should not be adjudicating on matters of Christian belief, in practice they are increasingly doing so. The Judge in the Cornerstone case rejected Cornerstone’s belief that being an evangelical Christian required a person to refrain from homosexual behaviour. It is risky to assume that saying “we believe…” is sufficient, without explaining why we believe it. Therefore, where there are matters of doctrine and belief that impact decisions and that could be discriminatory, they need to be well thought through and articulated.
So, if it is relevant to your organisation, rather than asserting as a matter of belief that there is a conflict between, for example, homosexual sexual behaviour or being in a same sex marriage and being a Christian, it is better to be able to explain why this is the case and what difference this makes to your organisation, and show that it has been fully thought through.
This does not necessarily mean that your statement of faith (or equivalent) needs to refer explicitly to such issues, but if for example your statement of faith asserts the authority of the Bible, and you believe issues such as those addressed in the Cornerstone case go to the authority of the Bible, it could help you defend a claim of discrimination if you had a side document explaining why such issues go to the authority of the Bible and what difference it makes to your organisation.
We do not pretend this is an easy task. Some Christian organisations will feel under pressure to not articulate these things, indeed they may be advised by their lawyers not to. There are a number of legal and biblical principles engaged and expert advice may be needed to think them through.
At Edward Connor Solicitors, we are unique in being a fully regulated solicitors firm established as a charity with Christian charitable objects. We only act for churches and Christian organisations, providing Christ-centred legal expertise. We specialise in helping our clients think through such issues and producing the documents they need to honour both their mission and their legal obligations.