Frank Cranmer’s earlier post on whether a religious group could discriminate when hiring its premises concluded with the summary:
“In the [Equality and Human Rights Commission’s] view . . . . . . as a matter of principle a church that hires out its premises commercially is obliged to accept all-comers, like it or not”,
and indicated that two key features in any consideration of discrimination are the terms and conditions under which the premises were offered for hire, and the nature of the proposed activity within them.
The EHRC guidance suggests that religious acts of worship fall outwith the Equality Act 2010 and as such, the case of St Edmund’s Roman Catholic Church in Southampton presented a ‘Catch-22′ situation: if a court considered that the proposed ‘spiritual yoga’ did constitute a religious act of worship, then the Equality Act would not apply; whereas if it were not so considered, religious discrimination could not be claimed by the yoga instructor, who is not herself not an Hindu adherent, and her contention that yoga is not a religious was supported by the President of the Vedic Society Hindu Temple of Southampton.
However, beyond this specific example, there are a range of situations that clergy, PCCs and others may need to address.
The use of churches and church buildings has the dual benefit of reducing the financial burden on parishes for maintaining premises that are used only infrequently during the working week whilst providing opportunities for the use of its buildings by the community at large as a means of further outreach and witness. There are also significant environmental advantages.
As a consequence, initiatives of this type are being encouraged by a number of bodies such as the Church in Wales and the Diocese of Exeter, but whilst a number of faith groups (but not all) have developed national guidelines, their consideration of discrimination is generally restricted to that relating to disability. However, in the case of the B&B owners, Bull & Bull v Hall & Preddy  EWCA Civ 83, Lady Justice Rafferty stated [at para. 46]:
“The legal framework for the interference [with the Appellants’ Christian principles as a manifestation of their religion], the Regulations, aims to ensure in a commercial context, [i.e. the provision of goods, facilities and services], equality for all regardless of sexual orientation”.
As I noted on the Digital Nun’s post ‘The Problem of Yoga’, those responsible for the letting of churches and church premises must balance the demands of those requiring goods, facilities and services with those imposed by the Church and by statutory legislation. This is of particular, though not exclusive, importance where these services &c form part of a commercial agreement. The case of Bull & Bull v Hall & Preddy (which is currently awaiting an appeal hearing before the Supreme Court) concerned regulation 4(1) of the Equality Act (Sexual Orientation) Regulations 2007 SI 1263, but other areas within the ambit of the Equality Act 2010 are equally pertinent.
With regard to what controls might be imposed by the church, the issue of concerts in church premises has a long history, and as such have received the attention of church authorities. Within the Roman Catholic Church, the Catechism states [at para.1157]:
“[s]ong and music fulfill their function as signs in a manner all the more significant when they are ‘more closely connected . . . with the liturgical action’”,
and in 1987, the Congregation for Divine Worship and the Discipline of the Sacraments issued guidance, Music in Churches other than during Liturgical Celebrations which identifies the importance of Canon 1210 of the 1983 Code of Canon Law which states:
“In a sacred place only those things are to be permitted which serve to exercise or promote worship, piety and religion. Anything out of harmony with the holiness the place is forbidden. The Ordinary may, however, for individual cases, permit other uses, provided they are not contrary to the sacred character of the place.”
The Guidance further states that to conserve the sacred character of the church, the Ordinary may impose a number of conditions relating to the performance, the dress of the performers, the manner in which the music is introduced, and “entrance to the church must be without payment and open to all”. Given that this advice was 25 years ago, it is likely that a more relaxed attitude will prevail in most parts of the Church.
Whilst the emphasis in the Roman Catholic Church is the nature of the sacred place, within the Church of England there is a concern with the ambit of its faculty jurisdiction, as defined in relation to consecrated land. This has received attention through its recent promotion of ‘church weddings’ which gives encouragement for:
“[c]ouples wanting a chic but great value reception are opting to cater for their wedding guests in the church itself – straight after the ceremony”.
This marketing initiative is backed by the legal guidance of the Advisory Commission of the General Synod, here, which notes:
“[t]he faculty jurisdiction . . . . applies to all premises and land that has been consecrated, including buildings situated on that land. [It] also applies to all buildings licensed by the bishop for public worship and to unconsecrated land (including buildings) which form part of the curtilage of a church within the jurisdiction of the court”: s 7(1) Faculty Jurisdiction Measure 1964.
With regard to church halls, it continues:
“no issues specific to ecclesiastical law arise in respect of wedding receptions in those church halls which are entirely distinct geographically from any church within the jurisdiction of the court”.
However, the position of Church of England premises that fall outside the jurisdiction of its courts has assumed a new significance in relation to the registration of civil partnerships. The Church Times recently reported that some parishes had been investigating the use of church halls for civil partnership registration as a means of circumventing the Church’s own ban on such a use. A Church spokesperson is quoted as suggesting it was unlikely that church halls would be given approval as venues for civil partnerships, as the Registrar-General:
“would not consider a church hall to be a religious building and therefore allow a priest to act as a registrar within it”. [i.e a church hall would fail the second criterion for “religious premises” in section 6A(3C) of the Civil Partnership Act 2004 which requires it to be ‘a church or chapel of the Church of England’].
The issues associated with the hire of churches and church buildings are addressed by a number of legislative instruments, and the consideration of discrimination adds a further dimension. It is reported that in the ‘yoga case’:
“each priest is at liberty to decide for himself what he thinks appropriate, there is no national/international policy”.
Such an approach is unacceptable in such a complex area, and while there may be one or two areas in which there is no definitive solution, this should not preclude the formation of workable guidelines.