Ampersand's Aidan O'Neill QC writes for UKSC Blog.

In HJ (Iran) v Secretary of State for the Home Department ([2010] UKSC 31) the UK Supreme Court held that gay people cannot properly be required or expected under international asylum/refugees to conceal their sexuality/pass as straight to avoid State sponsored but usually religiously inspired persecution in their home countries.    The central point about the UKSC decision is that the court rejects the cogency of any distinction between acting on one’s sexual orientation and being of a particular sexual orientation.   It was argued by the Home Office that it could properly send back avowedly gay men to Iran and Cameroon respectively on the basis that, if they were to be discreet (not – openly –  act on their sexual orientation) they would not invite persecution.

In rejecting this argument the court noted that to be of a particular sexual orientation was not simply a matter of (not) acting on particular urges to have sex.   Rather being gay carried for an individual a whole weight of meaning and outlook and was not simply about sexual behaviour.   It was recognised as being an integral part of the individual’s personality: not necessarily in any senses definitive of it, but central to it.  Thus to suggest that some not act gay was to tell them not to be who and how they were made (whether by God, or genes, or upbringing – or a combination of, or variation on, all three).   Any such demand was an affront to the respect for human dignity that a properly informed human rights culture requires.   Against the moral background provided by the principle for respect for individual human dignity required by a culture informed by human rights, the court was in essence giving legal effect to the moral guidance given by Polonius to his Laertes:   “This above all: to thine own self be true, And it must follow, as the night the day, Thou canst not then be false to any man.”   It might therefore be said that the UKSC court was saying that being of a particular sexual orientation could not – any more than being of a particular race or ethnicity – be said to be a matter of individual lifestyle choice (in the way that, by contrast, choosing to covert to or follow particular religious practices might be).

The implications of this view for US Constitutional interpretation appear to have touched on sensitivities across the Atlantic, such that the UKSC decision has already attracted some comment from the United State.  Professor Michael Scaperlanda of the University of Oklahoma College of Law refers to the following passages from the speech of Lord Hope (at paras 2, 10-11):

“2.    For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution.    More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years’ imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country’s culture, its religion and its laws. Objections to these developments have been greeted locally with derision and disbelief. …

10. … [A] group based on a common characteristic of sexual orientation may be included in a particular social group that is in need of international protection.

11. The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.”

Professor Scaperlanda then posits the following questions, among others:

(1)   “What gives this court the authority to determine whether a particular religious interpretation is ‘misguided’”;  and

(2)   “Is the court really implying that religion is less important to a person’s identity than the ability to act on one’s sexual orientation simply because it can be changed ?”.

The issues of neuralgic sensitivity in current US Constitutional Law and politics which the Supreme Court judgment in HJ (Iran) appears (unwittingly) to have touched appears to be the question as to whether or not the there might be constitutionally protected rights under the US Constitution either for individuals to be able to choose marry another under State law without reference to that other’s gender (the “gay marriage debate”) or to be protected against discrimination by federal law if they have solemnised a same sex marriage under State law.    These issues have been raised, respectively, in Perry v. Governor Schwarzenegger of California, Case No. C-09-2292 VRW currently under advisement before the United States District Court for the Northern District of California, and in Gill and Letourneau v. Office of Personnel Management Case No. C-09-10309-JLT before the United States District Court for the District of Massachusetts.   In the latter case in a judgment of 8 July 2010 Tauro J. held that the US Defense of Marriage Act 1996 (“DOMA”) in denying same sex married couples federally mandated health benefits which would otherwise be available to similarly situated opposite sex married couples could not survive even rational basis review.   In finding that it lacked any plausible rationale, the court inferred that the enactment of DOMA could only have been motivated by animus or irrational prejudice which could not constitute a legitimate government interest).   Accordingly the court held that the federal statute violated the equal protection principles embodied in the Due Process clause of the Fifth Amendment.    It is expected that either or both Perry v. Schwarzenegger and Gill and Letourneau v. Office of Personnel Management will eventually to reach the US Supreme Court.

Central to the resolution of this issue from the perspective of US Constitutional law is whether or not individuals being of a particular sexual orientation is constitutive of their identity (See Romer v. Evans, 517 U.S. 620 (1996) apparently treating gay and lesbian individuals as a class for equal protection purposes), in the same way that race or ethnicity can be so regarded (see Korematsu v. United States, 323 US 214 (1944) and Brown v. Board of Education of Topeka 347 US 483 (1954)).    If sexual orientation is understood simply by reference to an individual’s behaviour or “choice of lifestyle” (see Bowers v. Hardwick, 478 U.S. 186 (1986)) then, the argument runs, it is not constitutive of identity and hence, when group, incapable of forming a “class”.   But if individuals of the same sexual orientation can be said to form a “discrete and insular minority” and so constitutive of a “suspect class” they may therefore be able to claim the special judicial protection of “strict scrutiny” (a kind of “ultra-Wednesbury” or, “über-proportionality” review) of any State and Federal laws adversely impacting upon that class.   Strict scrutiny places the onus on the Government to prove that a “compelling government interest” is sought to be protected by the law; the law in question is narrowly tailored in the protection of that compelling interest; and there is no less restrictive alternative which might achieve the same legitimate aim see United States v. Carolene Products Co. 304 US 144 (1938).

The question as to whether being of a particular sexual orientation may be said to be constitutive of a class is a central one in the gay marriage litigation because of the resonances and parallels with the decision in Loving v. Virginia 388 US 1, (1967) where the US Supreme Court at last struck down as unconstitutional the “anti-miscegenation”/sexual apartheid laws of Virginia which, even into the mid 1960s, criminalised inter-racial marriage on the basis of what the Court of Appeals of Virginia held to be the State of Virginia’s compelling interests to “preserve the racial integrity of its citizens” and to prevent “the corruption of blood, … the creation of a mongrel breed of citizens and the obliteration of racial pride”.    The arguments in Perry v. Schwarzenegger and in Gill and Letourneau v. Office of Personnel Management is that mutatis mutandis the rationale of the US Supreme Court decision in Loving should be applied to the States’ and Federal government prohibitions on, or discriminations against, same sex marriage as serving no compelling government interest and as therefore unduly restrictive of the fundamental rights and liberties of the individual to choose whom to marry.

Significantly, in its recent decision in Christian Legal Society v. Martinez, No. 08-1371 (U.S. June 28, 2010) the majority of the US Supreme Court appeared to hold that sexual orientation is not merely behavioural, but rather, that gay and lesbian individuals are indeed an identifiable class. In apparent response to the Christian Legal Society’s argument in that case that it was not discriminating in its membership on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong, Justice Ginsburg writing for the majority states (gnomically)  that  “our decisions have declined to distinguish between status and conduct in this context”.

As David Paul Kuhn notes in “The Polarization of the Supreme Court”

“The Supreme Court has gradually come to act more like a political institution. The share of one-vote majority rulings has risen more than four-fold in the past six decades, compared to the half-century prior”.

Clearly, then, in an issue of such political and cultural sensitivity as gay marriage every individual potential vote on the US Supreme Court will count.   In recent years the most crucial individual vote has been that of Justice Anthony Kennedy who has most prominently played the part of the swing vote between the Court’s conservative and liberal blocs. Now normally, of course, the US Supreme Court plays no regard to foreign law but famously in Lawrence v. Texas, 539 U.S. 558, 575 (2003) which struck down the Texas laws criminalising homosexual conduct, this same Justice Anthony Kennedy, writing for the majority in that case, actually referred to and relied upon European Court of Human Rights jurisprudence on this issue, notably Dudgeon v. UK (1982) 4 EHRR 149.   The fact that the UK Supreme Court in HJ (Iran) should so comprehensively demolish the attempt meaningfully to distinguish between “behaviour” and “being” when it comes to sexual orientation can only serve as a succour to the plaintiffs in Perry v. Schwarzenegger and Gill and Letourneau v. Office of Personnel Management and may serve as a fillip to Justice Kennedy should these cases come before him in the US Supreme Court.

Justice Kennedy’s efforts in trying to open up the United States legal system to the benefits of comparative law were, of course, roundly scorned by Justice Antonin Scalia, in dissent, who referred to

“The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta.   Dangerous dicta, however, since .this Court . . . should not impose foreign moods, fads, or fashions on Americans’”.

What Scalia may make of the following observations from Lord Rodger’s judgment in HJ (Iran) will doubtless be made very plain should Perry v. Schwarzenegger ever make it to the US Supreme Court

“76.    No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution. Such an assumption about gay men and lesbian women is equally unacceptable. Most significantly, it is unacceptable as being inconsistent with the underlying purpose of the Convention since it involves the applicant denying or hiding precisely the innate characteristic which forms the basis of his claim of persecution …

77. At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable.  ….

78. … What is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.”

To conclude, and seeking to answer Professor Scaperlanda’s worried questioning, what seems to concern the Professor and what he seems to be driving at, is a suggestion or feeling that the specifically religious motivation for discriminatory attitudes and practices resulting in State persecution, should be worthy of some respect and deference from the courts.   But his objection to Lord Hope’s use of the word “misguided” itself seems to be misguided, in that it is clear from the passage quoted that Lord Hope was not there seeking to make any theological point, or to suggesting that the anti-gay views expressed were not in fact true expressions of the particular religious beliefs described.   Rather the tenor of the whole court’s decision in HJ (Iran) is that that those religious beliefs when acted upon are morally wrong because inimical to the proper respect for individual human dignity that is incumbent upon all States and societies

The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific  and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world.   An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge.  There is no usurpation of power in the judges so doing in this particular case.

This article first appeared on the UK Supreme Court Blog on 12th July 2010.

Ampersand is delighted to announce that head clerk, Alan Moffat, has graduated with an LL.B with Distinction.  Studied part-time, Alan completed the degree in the evenings and weekend at Edinburgh Napier University.

On his achievement Alan Moffat said: "I am delighted to have completed the course. There can be no doubt that understanding the law is of great benefit in my role as Clerk and Practice Manager of Ampersand. I must give a special thank you to the Stable and Faculty Services for their support during my time studying."

Alan's degree will contribute further to Ampersand's commitment of delivering best practice.

The socio-cultural reasons for the disappearance of the male WASP from the US Supreme Court are difficult to pin-point precisely; and what its significance might be is again hard to discern.    Indeed, for some it is thought indecorous even to allude to the religious/cultural background of any the Justices.     On this view the very taking of the judicial oath involves newly appointed judges wholly disencumbering themselves of their past individual cultural baggage, and assuming for the future a wholly objective approach to the law, untainted by considerations of where they came from and how they got from there.  Thus, a wise Latina from the barrios should reach precisely the same decision for the same reasons as a prudent country club WASP.   Since Justice is blind, one can and should be blind to the Justices.    At the same time there are some tensions with this view.   In his essay “The Supreme Court Phalanx” first published in (2007) 54 New York Review of Books, (Number 14, 27 September 2007) and re-published as Chapter 4 of his The Supreme Court Phalanx: the court’s new right-wing bloc (New York: New York Review Books, 2008) at 47-48) Professor Ronald Dworkin, in his fury at many of the decisions emanating from these first five years of the Roberts court, has described the five Catholic male justices to constitute a “right wing phalanx … guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance”.

The dominant, indeed almost universal, approach to date in the UK has been to pay no heed whatsoever to the religious and/or cultural background of those who are appointed to the Bench, albeit that the Jewish Chronicle reports in brief that the appointment of Sir John Dyson to the UK Supreme Court to fill the vacancy created by Lord Neuberger’s appointment as Master of the Rolls maintains the number of Jewish justices on the court at four.  But in Locabail (UK) Ltd v Bayfield Properties Ltd and another [2000] QB 451 a specially convened Court of Appeal bench (made up of the then Chief Justice, the Master of the Rolls and the Vice-Chancellor – respectively, Lord Bingham of Cornhill, Lord Woolf and Sir Richard Scott who was subsequently ennobled as the Law Lord, Lord Scott of Foscote)  stated that:

“We cannot … conceive of circumstances in which an objection [of apparent judicial bias] could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge.”

The bench was emphatic that a judge’s particular religious convictions or cultural background or associations would not and should not be thought to influence his or her decisions on matters of law (see similarly Helow v. Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2418) holding that a Court of Session judge’s public membership of the pro-Israel lobbying group the “International Association of Jewish Lawyers and Jurists” was insufficient to make out a claim of apparent bias in the judge’s upholding of a lower court’s refusal of asylum to a Palestinian activist..

But even within the United Kingdom legal and constitutional context, there are signs of some tension developing on this issue.   In R. (on the application of E) v JFS Governing Body [2010] 2 WLR 153, the UK Supreme Court, by a 5:4 majority (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke forming the majority; Lord Hope, Lord Rodger, Lord Walker and Lord Brown dissenting) held that a Jewish faith school was not permitted to apply Orthodox rabbinical standards as to who counted as a Jew in its admissions policies.    Application of the requirement that prospective pupils require to have mother born a Jew, or duly converted to Orthodox Judaism, was held to constitute direct race discrimination.   If the school had applied a purely faith/belief/practice criterion (e.g. coming from an observant house-hold) its admissions policies would have passed muster.   But in applying a policy based on, in effect, the ethnicity of the mother of the pupil – albeit for religious reasons – the school acted unlawfully in breach of race discrimination law.   What is little remarked upon is that the UK Supreme Court was convened as a bench of nine judges, in part having regard to the religious/cultural backgrounds of the Justices hearing the case because of the particular religious and cultural sensitivities involved in the issue in respect of which the court was reluctantly required to adjudicate.

The claim that it might be legitimate to look at the individual religious/cultural background of the judges hearing a case has also received recent trenchant support from the former Archbishop of Canterbury, Lord Carey, in a witness statement lodged in support of a renewed application before the Court of Appeal of England and Wales for leave to appeal against a decision of the Employment Appeal Tribunal in McFarlane v Relate Avon Ltd. [2010] IRLR 196.  The case concerns a relationship counsellor who sought to be exempted by his employers from relationship counselling work with same sex couples where specifically sexual issues were involved, on grounds of his religious belief in the immorality of such conduct.    In the report on the renewed application for permission to appeal Lord Carey is quoted as saying this:

“18.  I am concerned that judges are unaware of these basic issues on the Christian faith; further it is difficult to see how it is appropriate for other religions to be considered by the Judiciary where the practices are further removed from our traditions.

19.  It is for this reason that I support the application by Mr McFarlane for his appeal to be heard under the direction of the Lord Chief Justice and a freshly constituted five member Court of Appeal.

20.  Further, I appeal to the Lord Chief Justice to establish a specialist Panel of Judges designated to hear cases engaging religious rights.  Such Judges should have a proven sensitivity and understanding of religious issues and I would be supportive of Judges of all faiths and denominations being allocated to such a Panel.  The Judges engaged in the cases listed above should recuse themselves from further adjudication on such matters as they have made clear their lack of knowledge about the Christian faith.”

The retired (if not retiring) Archbishop’s claims have been rightly robustly rejected by Lord Justice Laws, in refusing the renewed application for leave to appeal who noted as follows:

“18.   Lord Carey’s observations are misplaced.  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”.  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.  ….

23.   The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves.  So it is with core provisions of the criminal law: the prohibition of violence and dishonesty.  …   But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled.  It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion.  This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence.  It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society.  Therefore it lies only in the heart of the believer, who is alone bound by it.  No one else is or can be so bound, unless by his own free choice he accepts its claims.

24.   The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified.  It is irrational, as preferring the subjective over the objective.  But it is also divisive, capricious and arbitrary.  We do not live in a society where all the people share uniform religious beliefs.  The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.  If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic.  The law of a theocracy is dictated without option to the people, not made by their judges and governments.  The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

25.   So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials.  Both principles are necessary conditions of a free and rational regime.

26.   As I have shown Lord Carey’s statement also contains a plea for a special court.  I am sorry that he finds it possible to suggest a procedure that would, in my judgment, be deeply inimical to the public interest.”

The paradox is that the obvious tension between the views expressed by Lord Carey and their unequivocal rejection by Lord Justice Laws arises precisely because of the expansion of anti-discrimination law explicitly to outlaw discrimination on grounds of religion or belief.    What the religiously motivated find difficult to understand or accept is that the freedom from discrimination on grounds of religion or belief which has been afforded them by the law does not extend to giving the religious a general right to discriminate (on otherwise unlawful grounds such as sex, age, race, disability, or sexual orientation) on the basis of religion or belief.    There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue.   The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.

Aidan O'Neill QC

This article first appeared on the UK Supreme Court Blog on 3rd June 2010 and in the Guardian Legal Network on 7th June 2010.

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