Last week judgment was handed down in the case of Cornerstone v Ofsted. Cornerstone, an adoption and fostering charity based on the northeast of England, had sought to overturn an earlier judgment from last year which found that it had unlawfully discriminated in only accepting heterosexual evangelical Christians as potential carers.
In this latest judgment, the Court of Appeal agreed that the judge had been unduly dismissive of the importance of Cornerstone’s evangelical faith to its work and mission but ruled that this did not justify sexual orientation discrimination in the furtherance of that mission.
The matter had initially arisen in 2019 when Ofsted issued a draft report to Cornerstone, downgrading its status from ‘good’ to ‘requires improvement’ because Cornerstone, an explicitly evangelical Christian organisation, only recruits evangelical Christians in opposite-sex marriages. Ofsted found this recruitment policy to be in breach of both the Equality Act 2010 (EA 2010) and the Human Rights Act 1998 (HRA 1998). The Charity Commission had queried Cornerstone on the same points in 2010 and found that there had not been a breach.
Cornerstone sought to argue in this court case (as it did successfully with the Charity Commission) that it did not discriminate on the ground of sexual orientation but rather on behaviour, a distinction which was rejected by the court. However, this distinction is central to how many evangelical churches and organisations engage with issues of sexual orientation and identity within a biblical frame, and as such this highlights a growing chasm in societal and traditional evangelical approaches to human sexuality, making future challenges in this area highly foreseeable.
A number of Cornerstone’s arguments were either uncontested or upheld by the court, leading to some helpful clarifications. Cornerstone’s policy was found not to be discrimination on the ground of religious belief. The Court of Appeal ruled that the trial judge was wrong to find that Cornerstone’s policy was not a manifestation of its religion. It also overruled his dismissal of the way in which Cornerstone chooses to manifest its beliefs and in his assessment of the significance of Ofsted challenging this manifestation. This judgment helpfully restates that the law continues to respect and defend the rights of religious organisations to apply restrictions based on religious belief if this is necessary to comply with the doctrines of the organisation.
Matters are more complicated when the religious organisation carries out a public function with public money, as was the case here (though the precise nature of this remains an area of dispute between the parties). The law supposedly allows restrictions in this context to sexual orientation if sufficiently justified. However, this ruling does not inspire confidence as to the long-term value of this provision because the level of justification needed would appear to be onerously high – dealing more with the outcome of the belief than the fact of the belief itself (paragraph 145 of the court’s judgment).
Among the most concerning elements of the judgment is its discussion of the content of evangelical belief. The court indicates that it is not for Cornerstone to decide the ‘evangelicalness’ of gay and lesbian evangelical Christians, but this in turn raises the question of the court’s competency to decide this question at all. The finding that the trial judge “was not obliged to adopt Cornerstone’s doctrinal definition of evangelical Christians” (para 136) begs the question of whose definition is adopted instead, and why. The court’s earlier affirmation that “it is not for others, including the courts, to adjudicate on the truth of religious beliefs” (para 83) rings somewhat hollow at this point and becomes quite faint and distant when the court states at para 137, “An important purpose of the EA 2010 is to support progress on equality and it must be recognised that religious doctrine does not stand still”.
There is an implication here that the “right” trajectory has been set by the legislation and that there is a role for the courts in dealing with ‘wrong’ religiously motivated positions to nudge them forward in the direction of progress. While this point was not ultimately determinative of the matter at hand, its presence within the judgment at all calls into question the court’s ability to balance competing rights and suggests that religious rights, and classical evangelical convictions in particular, will always be prejudiced by uncodified sentiment, even in the highest courts of the land.
This case does not deal with any particularly novel questions of law, instead raising some familiar and vexed questions, such as how does a democratic society balance, respect and accommodate competing rights? What scope is there for traditional Christian beliefs to continue to be manifest not only in private but in public? Where will the societal train of ‘progress’ lead us?
Cornerstone is seeking to appeal this latest decision, hopeful as it is to continue to secure and encourage evangelical Christian placements for some of the hardest-to-place children, within the context of its evangelical conviction. For Cornerstone, this is an indissociable part of its work.
