Edited By Ulrike M. Vieten and Gill Valentine
The collection explores a wide range of topics, including conflicting claims of sexual minorities and conservative Christians, the relationship between national identity and cosmopolitanism, and the ways that cross-cultural communication and bilingualism can help us to understand the complex nature of belonging. The authors come from a variety of disciplinary backgrounds and all contribute to a vernacular reading of cosmopolitanism and transnationalism, aimed at opening up new avenues of research into living with difference.
When Beliefs Become Property: Liberal Legal Discourse, Employee Resistance and Anti-Gay Christian Politics
← 40 | 41 →DAVINA COOPER AND DIDI HERMAN
When Beliefs Become Property: Liberal Legal
Discourse, Employee Resistance and Anti-Gay
ABSTRACT: This chapter explores contemporary British conservative Christian legal demands that their religious-based objections to providing services to lesbians and gay men be accommodated by employers and other public bodies. Focusing on a series of court judgments, the chapter explores the dominant interpretation of the conflict as one of two groups with deeply held, competing interests. It argues that these interests can usefully be approached as social property – that is, as things that the state recognises, protects and empowers. Drawing on this framework to understand the conflict as one of property, the chapter explores the question of who conservative Christian workers’ labour belongs to, whether a property framework can provide a useful language for thinking about resistance and transgression, and finally whether a radical politics in relation to religious beliefs and sexual identity necessitates going beyond property’s terms.
A striking development in early twenty-first-century Britain has been religiously motivated litigation over lesbian and gay equality arising from the development of recent anti-discrimination laws. Culminating in the ← 41 | 42 →Equality Act 2010, the Labour government introduced an array of anti-discrimination measures, focused on employment, goods and services. These deepened coverage for existing ‘characteristics’ such as gender and race, and extended it to new ‘characteristics’, such as religion and sexuality. These reforms, particularly in relation to sexual orientation, parallel developments across other jurisdictions where anti-discrimination and liberal human rights have been extended. In Britain, developing legal protection for sexual minorities provided a late stage in the institutional manifestation of gay sexual politics, which moved from decriminalisation and the development of local government initiatives in the 1980s, to the equality measures of the post-1997 Labour government. But this move towards formal liberal equality did not go unchallenged. In the face of ongoing conservative Christian attempts to thwart or impede gay rights, twenty-first-century measures to extend anti-discrimination protection on grounds of both sexuality and religious beliefs opened up a new terrain of conflict. For the past few years, conservative Christians have sought to use anti-discrimination and human rights law to legalise their right not to comply with the new gay equality requirements. Cases to end up in British courts include a marriage registrar who refused to officially register gay civil partnerships;2 a counsellor who felt unable to provide psycho-sexual counselling for same-sex couples;3 a prospective fostering couple who refused to create a gay-positive home;4 a church diocese that wouldn’t employ a gay youth worker;5 guest-house owners who wouldn’t let gay couples share a room;6 and a magistrate who asked to withdraw from family court decisions involving prospective gay parents.7 Similar cases have occurred in other jurisdictions, with some variation in their legal framing, particularly in the USA and Canada.
← 42 | 43 →In Britain, this legal drama over conservative Christian withdrawal has generated extensive scholarship (e.g. Leigh 2008; Malik 2011; Parkinson 2011; Rivers 2007; Stychin 2009a, 2009b; Vickers 2010, 2011). What is striking, however, given the diverse sexual politics of the different commentators, is the degree of academic convergence that has taken shape around a particular narrative of the conflict. This is a narrative of two groups with competing interests and attachments, whose respective claims to equality or freedom deserve tolerance, respect and understanding. In the discussion that follows, we seek to explore this shared narrative, which interestingly, despite many commentators’ criticisms of the judgments, also pervades the courts’ decisions. Our argument is that, at the heart of this narrative, is a ‘social property’8 paradigm in which beliefs and sexuality constitute part of individuals’ estate – things that can be invested in, possessed and secured from the (destructive) reach of others. Thus, this approach extends Macpherson’s (1962) influential work on ‘possessive individualism’ which underscored both the role property owning plays in capitalist liberal society, and the extent to which property relations anchor and frame people’s relationship to their person, capacities and labour. Today, both sexuality and religious faith have become legally and politically intelligible within the British polity in these propertied terms, as characteristics that belong to subjects and which, to varying degrees, can be developed, shared, accessed, and left. British equality law has done much tacitly to consolidate this framework, with its emphasis on balance, ‘property’ conflicts and recognised interests. Yet, the terms of social property cannot be reduced to getting the balance right – making sure each identity has what is owed to it. Property claims are far more unruly and multifarious; and subversive practices, such as squatting, defacement, theft or re-appropriation, demonstrate how activities, rendered intelligible in property terms, can work politically to undercut new emergent hegemonies, including gay equality.
There is no doubt that in many discussions culture is treated as a possessive property of individuals, as a free-floating signifier, as static and given and as a thing that we carry with us. (Anthias 2011, 204)
Dominant social characteristics make different kinds of capital, status and power available, as Cheryl Harris’s (1992) influential work on whiteness as property demonstrates (see also Ahmed 2007; Grabham 2009; Keenan 2010; Lipsitz 2006). Masculinity, bourgeois class positioning, Christianity and heterosexuality, in Britain, arguably work similarly. On the one hand, they appear as properties or social characteristics of the self; that is, as qualities which people experience as integral to who they are. On the other hand, such properties function as ‘investments’ – as kinds of capital or wealth that can be accumulated, worked at and protected in order to maintain their wider social force and impact. Thus, it is perhaps unsurprising that conservative Christian organisations in Britain, the USA and Canada – most notably in the Boy Scouts of America case9 – have sought to oust ‘out’ gay members, students, youth workers, and staff in an effort to maintain control over their collective bodies, to keep their Christian ‘property’ uncontaminated by dissident sexualities. In the past, such behaviour generated progressive concern but was largely untouchable through law. Now, equality law has entered the fray – a legal structure we can understand as re-allocating social property – or at least threatening to. In its refusal to prefer heterosexualities over gay ones or Christian beliefs over others – anti-discrimination law troubles the legal capital (and social power) that particular sexual and religious identities worked intensively to secure and protect; and which, in turn, they relied upon.
We can thus read the legal drama over conservative Christians’ refusal to provide gay men and lesbians with equal treatment as a political response to equality laws’ recalibration of Christian social property – a refusal on the ← 44 | 45 →part of religious proponents to accept the explicit and implicit demotion of Christianity as a valuable attachment. Yet, what is interesting, and perhaps unexpected in the context of British constitutional life with its established Anglican church, is that Christian litigants’ demands that their beliefs be respected as a legitimate basis for refusal was largely rejected by the courts. Judges refused to treat the requirement that Christian service-providers and employees treat gay people equally as a form of actionable discrimination against Christians. Drawing on our social property framework, we can understand this judicial denial as a diminishment of Christianity’s capital, but how exactly did it take place?
Three judicial techniques stand out: narrowing what counts as the propertied ‘object’ (i.e. Christian beliefs); restricting the terrain in which such beliefs can exert effects; and authorising a counter-set of propertied interests, namely that of employers to their workers’ labour. We will discuss each in turn. If, as Christian litigants claim, religious beliefs should rightly function as grounds for treating people differently (in other words, if religious beliefs can exempt their holders from complying with equality law requirements in relation to sexuality), the question arises as to what constitutes legitimate beliefs. In certain contexts, particularly in relation to ‘philosophical’ beliefs, this question becomes one of whether the belief in general is recognised by equality law.10 In the cases discussed here, there was no question of whether Christianity, in general, constituted a recognised belief. Instead, a second question was posed: what actually constitutes Christian belief? In Ladele, a case concerning a London registrar who did not want to conduct same-sex civil partnerships on religious grounds, the judge, Neuberger MR, remarked: Ms Ladele’s ‘objection was based on her view of marriage, which was not a core part of her religion’ (213, italics added).11
Judicial readiness to determine the parameters of the religious propertied object (just as they might determine the boundary to a piece of land) has not, however, gone unchallenged. Several commentators have ← 45 | 46 →criticised judicial attempts to distinguish between a religious core and periphery (the judicial implication being that the latter should not count as power-bearing property). Lucy Vickers (2010, 295), for example, writes: ‘It is not for the court to determine the status of religious views as either core or peripheral, as these are matters which are arguably beyond the competence of any secular court.’
If the courts are not to determine the scope of the propertied object, and must simply defer to the views of property-holders themselves, what role, if any, can they play in determining the geography of use-rights – those sectors and places where religious attachments are to be recognised, since ‘property here is not necessarily property there’ (Keenan 2010, 429)? Judges go out of their way to express respect for religious (and other) beliefs as forming legitimate attachments. Nevertheless, the courts declare such attachments cannot function as acceptable reasons for withdrawing services or refusing to do one’s job. In Ladele, the Court of Appeal declared, ‘Ms Ladele was employed in a public job and was working for a public authority. She was being required to perform a purely secular task, which was being treated as part of her job.’12
Placing limits on where religious attachments can be legitimately actualised (and so able to make a social difference) has come under criticism (Stychin 2009a, 35; Ryder 2006).13 Commentators claim that placing walls around the domains where faith can exert an influence – in effect privatising or closeting religious expression – damages subjects who inhabit multiple overlapping spaces; misreads the world-making character of (much) religion; and undermines the contribution and value of religious identifications. Commenting on the Canadian version of the Ladele case, Bruce Ryder (2006, 12–13) remarks:
Religion is indeed functioning here as the new gay: just as the display of minority sexual orientations in the public sphere invited persecution in Canada in the past, now religious public servants… are being asked to choose between keeping their jobs and acting in accordance with their religious beliefs.
← 46 | 47 →What this trade-off between beliefs and work reveals is the complex character of social property. On the one hand, at issue is the propertied attachment of Christian litigants (as public service providers) to their faith; on the other, is the property relationship between such service providers and their work. Central to several of the cases we are discussing is the question: who owns the labour? Does public sector work belong to those who do it, to their employers, to the state, even to God? And how, if at all, do workers’ religious attachments affect the character and ownership of their labour? Is the service that Christian ‘conscientious objectors’ provide as counsellors, adjudicators, police-officers, teachers and marriage registrars inevitably and legitimately ‘coloured’ by their religious attachments or should conservative Christian providers be expected to exercise self-control in order to keep their religious attachments and investments away from their job? If they cannot exercise such self-discipline, what wider relations of belonging and attachment become precarious as a consequence?
For those conservative Christians who refuse to comply with work-based obligations to sign civil partnership registers, provide psycho-sexual counselling to lesbian and gay couples, represent gay sexuality positively as teachers or raise fostered children in gay-sensitive ways, the stakes in the struggle over their labour are high. Disciplinary action, exclusion from state-organised fostering arrangements, and the risk of getting fired suggest conservative Christians’ labour (like that of other staff) belongs to the state employer; and that it constitutes a human resource, which employers can use and direct as they deem fit (also Pateman 2002). But, these cases are not simply about litigants’ refusal to support, through their labour, an agenda or project to which they are hostile. The relationship of conservative Christian objectors to what it is they are being required to do is more complex and contested since, from their perspective, something of themselves appears involuntarily to stick to the gay-positive future of legal relationships, sexual ← 47 | 48 →coupledom, parenting, teaching and growing up that they are being asked, through their labour, to help create. Conservative Christian litigants seem morally implicated in what they do. Thus, they reject the claims of employers and the state that the work has nothing to do with them since they are employed to act on behalf of (or to represent) another body with authority or proprietary rights over what they have produced or done. Conservative Christians refute the moral alienability of their bodies and its actions, that they can simply be tuned (or re-tuned) as employees or public sector agents to a different moral project. If, in Lockean terms, property becomes vested in what subjects have made, here litigants make visible – even as they refuse – this relationship, demanding the right to disinvest.
Conservative Christian litigants’ claims that their disavowed attachments to their work be recognised and respected have not been upheld by the courts. Rather, the courts argue, since workers’ labour belongs to their employer, a local council can quite properly require that all its staff act in a non-discriminatory fashion. In McFarlane, a case concerning a Christian therapist who felt unable to give psycho-sexual counselling to lesbian couples, the court held that it was justifiable for his employer, Relate, to require that staff adhere to equality principles, which Relate regarded as fundamental.14 Not only are the organisation’s principled policies deemed to be beyond the control of (individual) employees, they are also deemed to be autonomous of laws emanating from a ‘higher’, theistic power. As Laws LJ remarked in the case of McFarlane, ‘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’.15 For the state to behave otherwise would be to allow religious belief to act ‘as a solvent dissolving all inconsistent legal obligations owed to the employer. That plainly cannot be right. Indeed, given in particular the fact that beliefs may cover a vast range of subjective opinions, the consequences would be extraordinary’ (Elias J. Ladele).16
← 48 | 49 →But, while the courts declare that employers’ property in their workers’ labour, and organisations’ property in their policies, can legitimately limit how staff manifest their religious attachments, commentators worry about the consequences. If religious beliefs lose their propertied value, will believers’ social and political membership in the polity likewise diminish? In other words, will a decline in what belongs to the religious subject affect the capacity of that subject to belong in turn? Bruce Ryder (2006, 18), writing in a context of rising Islamophobia in Canada, argues: ‘The pressures to adopt policies that force people of faith to choose between adherence to their faith and full membership in Canadian society need to be vigorously resisted in the current context.’ Ryder’s words resonate with the cases discussed here given that a significant proportion of the British cases involve Black Christian members of minority churches – a constituency arguably vulnerable to wider forms of social exclusion.17 But while such Black British Christians may never have been able to exercise much power as a result of and through their faith, no property power is completely stable. It all depends on recognition by authorising bodies and, as such, any religious property can be vulnerable to becoming non-property or even a kind of negative property – in the sense of generating disadvantages rather than advantages for its members.18 In the United States, activists and commentators have critically addressed the problem of making access to state ← 49 | 50 →resources conditional on one’s political acceptability, and the relations of exclusion that can ensue as a result (e.g. Hodge 2002; Reich 1964). In the present conflict, conservative Australian commentator, Patrick Parkinson (2011, 294) writes, the ‘emerging policy of moral monoculturalism… [denies] employees the right to hold moral positions on the issue of same-sex relationships that differ  from the majority acceptance of them’. He continues, ‘the new majority… [needs to] offer a reciprocal level of respect to those who hold different beliefs’ (295).19
The problem of excluding people from work, membership or state resources because of their beliefs acquires a particular shape in the court judgments discussed here. People are assumed to be self-possessed, rational, independent decision-makers who can be held responsible for the consequences pursuant to their decisions. Those who don’t like the consequences should make different decisions; in other words, they should exercise the property held in their self differently. For Mr McFarlane, the Relate counsellor, his case is undermined by the fact that he signed up to his employer’s equality policy when appointed – the implication being that if he did not support their policy he should not have taken the job. Maleiha Malik (2011, 34) makes a similar point in relation to Ladele – namely, if Ms Ladele did not like Islington Council’s equality and diversity policy, she had the ‘right to freedom of religion or belief by taking up another job’.
Adopting a liberal framework in which actors are seen to have, and so relied upon having, other options, the courts treat the sexuality equality requirements applied to those taking up public employment (and other goods) as acceptable.20 Since they can leave and work elsewhere, employees ← 50 | 51 →always retain a residual property in themselves (a retention that is crucial, in liberal terms, if the temporary transfer of property in one’s labour to an employer is to constitute legitimate employment as opposed to illegitimate servitude). Supporters of a religious right to exemption from sexuality equality provisions, in contrast, reject the notion that a fair choice exists. Adopting a position more commonly associated with the left, they argue that quitting a job so as to avoid compelled compliance with an employer’s policies is not a free decision, but one forced on the religious worker. Yet, while conservative Christians question the market value of the residual property right retained in the self on which liberals heavily rely, conservative Christian refusal also provides a very clear affirmation of the ‘property’ remaining in oneself. This is not a property that is virtual or pending, activated only by quitting as liberals suggest, but a property that is claimed at the very moment that the labouring body refuses to perform the actions that their employer demands.
Beyond the balanced state
Approached through equality law, social property takes on a particular sheen – equated with fair shares and the need to ensure no one is legally dispossessed. Discussing the cases, Malik (2011: 34) argues for a balancing, which gives ‘importance to both sets of rights’. Vickers (2012, 210) proposes an approach that is ‘open textured’, based on ‘proportionality and equilibrium between competing interests’. For Stychin, an important part of the move towards resolution is the ‘goal of civility and the hope that areas of common ground might be found’ (2009b, 749). He remarks: ‘we are left with tolerance as a basis for moving forward’ (2009b, 753).
The attention commentators have paid to finding win-win forms of resolution is important. It recognises the value of protecting people’s income and welfare; not creating embittered losers; being careful about the deployment of state power; and promoting dialogue and understanding ← 51 | 52 →between different constituencies.21 However, what can get lost in the process of identifying mutually agreeable resolution strategies is a perspective able to stand back from the naturalised attachments, which more proximate accounts of the dispute tend to generate. With some distance from the desire to resolve the conflict according to the terms on which it has been fought, namely of conservative Christian opposition to gay rights, we can consider the wider political stakes, including the demands of a progressive (even radical) institutional politics, and the place of conservative dissent within it. In the limited space remaining, we want to briefly identify how social property can illuminate this broader terrain, providing a language through which the relationship between progressive hegemonic developments and their on-going contestation can be both addressed and affirmed, in the face of equality law’s tendency to identify trumping interests or find a compromising balance.
Focused on the relationship between attachment and power, the concept of social property centres belonging, and what it is that relations of belonging can do (see also Cooper 2014). Although the disputes we discuss are foremost concerned with the propertisation of religious faith and sexual orientation (alongside property in one’s labour), they also gesture to another property stake – the attachment/ power nexus associated with the nation-state, where the nation is both that which belongs, and that which holds the belonging of others. For pivotal to this legal drama are the terms on which such nation-state belonging is to occur. As politically active conservative Christian organisations resourcing and supporting the litigants make clear, their ambitions go beyond mere accommodation. As the website of Christian Concern, who run the Christian Legal Centre that backed McClintock, McFarlane and the Johns, declares,
At Christian Concern we have a passion to see the United Kingdom return to the Christian faith. Our nation has been shaped and defined by this faith for hundreds of years. Yet in the last few decades the nation has largely turned her back on Jesus and embraced alternative ideas such as secular liberal humanism, moral relativism ← 52 | 53 →and sexual licence. The fruit of this is rotten… Yet we believe that this nation has a hope, and that hope can be found in Jesus Christ… We need to be passionate about our faith and became a light and a witness to the nation.22
Asserting historic ties of reciprocal belonging between church and nation, conservative Christian forces argue for the strengthening and sustenance of such connections (Herman 1997). Legal recognition of conservative Christian religious attachments, and what such attachments are entitled to receive, becomes integral to the task of re-attaching Britain to Christianity so that people can be saved and returned to God. Against this project is a liberal one, overtly less focused on the question of to whom (or what) the nation belongs than on who belongs to Britain. Thus, court judgments in this dispute emphasise Britain’s pluralistic character. In Johns, the case of the prospective foster parents, unable to present sexual identity in gay-positive ways, Munby J remarked, ‘We sit as secular judges serving a multi-cultural community of many faiths. … the laws and usages of the realm do not include Christianity, in whatever form. The aphorism that ‘Christianity is part of the common law of England’ is mere rhetoric’ [Johns, 506].23 Similarly, in McFarlane, Laws LJ commented that no one faith belongs more than any other (877).24
Focused on the attachment-recognition-power relationship, the concept of social property elucidates these expectations, claims and relations. At the same time, it also offers a way of recognising and making visible challenges to hegemony – whether from the left or the right. But what value for a liberal democracy can be found in such dissident actions? According ← 53 | 54 →to agonistic feminists and others, institutional processes within a liberal polity should not be too tranquil (e.g. Mouffe 2005). Even progressive forms of order require some disorder, organisation some disorganisation, for a vibrant, dynamic, responsive politics to flourish. Sarah Keenan (2010, 2014) has written about subversive property practices in relation to Aboriginal Australian politics. She (2014) describes such subversive practices as relations of belonging that are out of place – the introduction of things and bodies that unsettle dominant forms of spatial legibility. The disputes discussed here can also be read as dissident (or subversive) property relationships as litigants’ refuse to do what is required of them, using the property held in their bodies and labour to reject official policies. Indeed, we might read Christian claims to be exempted from sexuality equality laws as a form of ‘squatting’, staying in post and refusing to yield; making use of available occupational resources to which they have an uncertain (or denied) right. Thus, while legal commentaries largely focus on outcomes – a focus that generates varying disquiet at conservative Christians’ apparent disenfranchisement, an account focused on conservative Christian engagement in subversive social property acts recognises their capacity to act, the performance and accomplishment of subversive property, without necessarily valuing the grounds upon which such challenges are made (see Cooper 2015).
Dissident social property practices are not, however, free-standing, isolated events. Beliefs, bodies and identities can be used to assert a relationship of belonging that, by simultaneously acknowledging and resisting exclusion, expresses a desire to be included within the ‘we’. Dissident practices can also give rise to reciprocating counter-actions, of renovation, cultivation, and stewardship, as other actors get involved, keen to resist the encroachments of disavowed, dissident others. In Ladele, for instance, Islington council appears, from the judgment facts, to have been impelled to act as a result of the pressure coming from the Christian registrar’s gay colleagues (157, EAT). Perhaps motivated by the contingent and precarious character of their own attachment to Islington council (as a place where they could belong and comfortably dwell), council staff demanded that Islington recognise and affirm ownership of its equality and diversity policy as a relationship that created steward-like obligations of operationalisation upon it.
← 54 | 55 →Using the concept of social property here, in relation to liberal democracies, allows us to explore the agonistic, turbulent, dynamic quality of political, social and legal claims and action; where what counts as theft, dispossession, settling, squandering, appropriation, borrowing, gifting, seizures or trespass depends upon one’s perspective and the balance of force relations. But while property may identify, elucidate and even affirm the value and richness of conflicts often understood in other terms, it also has limitations. Particularly, we want to suggest, it is limited as a normative framework when it comes to sexual orientation and religious belief by its assumption that such phenomena are thing-like: that they can be possessed, invested in, deployed and protected from the predations of others.
Certainly, from a feminist perspective, the depiction of religious faith and sexuality as social property may seem a step on the road to rendering them less structural or systemic social processes. For, as social property, they can be extracted, harnessed and, at least theoretically, transferred or destroyed. Lisa Adkins (2005) makes a related point in her discussion of gender as a flexible occupational resource that male workers, in particular, can take up in non-conventional ways. While her work is critical of the corporate implications of this trend, we might read the de-structuring evident in the disputes discussed as, in part, the state’s off-loading of its own social property. As sexuality and religious beliefs cease to be phenomena that belong to the liberal state, ‘things’ that states structurally and systemically deploy (even as the state is structured by them in turn), they become instead properties that individuals, groups and corporations are deemed capable of freely taking up (and, if they choose, relinquishing). But what would it mean to go further and actually de-propertise religion and sexuality so that they no longer constituted social properties at all?
Undoing attachments; fragmenting and diffusing sexualities and religious beliefs so that they become fluid and undefinable; refusing to convert either beliefs or sexualities into symbolic forms that make extraction from the social fabric possible; withdrawing the institutional recognition necessary for them to extend their property-holding subjects powerfully into the world – constitute some forms this could take. Certainly, we do not want to suggest such processes are especially evident in the cases discussed. Indeed, our discussion has been premised on the extent to which both judgments ← 55 | 56 →and commentary appear, rather, wedded to a propertied logic of investment, accumulation and attachment, where sexuality and even more religious belief come to form coherent, knowable wholes. At the same time, a thinner conception of both faith and sexuality emerges in the refusal of judgments and commentators to compare faith and sexuality’s respective normative worth, and in the equivocation expressed when it comes to the question of propertied objects’ scope and geography – of what it is exactly that legally counts and where. Together, these tendencies gesture to the possibility of a different, less propertied way of understanding, but also of forging, social subjects’ relationship to post-rational (or spiritual) beliefs and sexualities. We might imagine a context in which both appear – not as things which belong, or to which constituencies belong, that may be accumulated, fortified, mastered, and which, like other forms of property, help certain subjects to extend into the world in particular powerful ways – but instead as tastes, desires, stimulations, modes of enchantment and cares. What are the implications of such a move towards the plural and contingent re-assembling of faith and sexuality, within liberal democracies, as creative engagements and explorations that cannot be possessed and owned, and that do not, in turn, possess or own either? Might these be processes to which a progressive institutional and organisational politics could productively contribute?
Our analysis in this chapter was originally motivated by the surprising degree of common ground between legal commentators who, despite holding quite different political ideologies, were equally critical of what seemed – at least at first glance – to be gay-positive, secular-affirming court decisions. Our aim was to understand this common ground, to reflect upon its stakes, and to consider whether such stakes could be approached in other ways. This double-move of understanding and de-familiarising the framing of the conflict as one of competing interests, equally deserving of attention and respect, took us to a conception of social property.
← 56 | 57 →Focusing on social property both highlights and re-frames the challenge that equality law poses by its unsettling and resettling of the power that different attachments can generate and exercise. Social property highlights equality law’s buy-in to the myth of balance, an aspirational ideal in which different attachments co-exist in equilibrium – discrete entities whose relationship to each other is neither constitutive nor relational. At the same time, it highlights the current position, within British equality law decisions, in which one side’s propertied win is the other side’s propertied loss. And it also highlights the complex relationship between ownership of beliefs and identity, on the one hand, and ownership of workers’ labour and public sector resources, on the other. From a progressive perspective, Christian litigants’ refusal to fully give property in themselves or their work to their employers is striking. Treating compliance as moral approval of gay-positive futures, Christian litigants deny a narrative which treats their labour as belonging fully to their employer (or to public authorities). This stubborn refusal of those labouring to recognise the alienation that they have already formally acceded to is criticised by the judges; academic commentators vary in their response. However, where commentators and judges converge (with very few exceptions) is in the value to be afforded religious belief.
Transcendent, post-rational identifications, relations, practices and sensations may provide challenging, enriching, phenomenological ways of experiencing the world. But such forms of enchantment are not what these cases are about. What is, instead, at issue are the conservative dimensions of religious beliefs, where gay sex and same-sex unions are interpreted as ‘contrary to God’s instructions’.25 Thus, while we recognise the dangers of excluding people from public resources and from participation within the polity, including through unemployment, our aim here has not been to affirm conservative Christian anti-gay refusal. Instead, we are interested in the challenge that such refusal poses for a progressive state politics.
Thus, in the final part of the chapter, we considered the contribution social property could conceptually make to thinking about the relationship between hegemonic and anti-hegemonic projects. Yet, while property helps ← 57 | 58 →us think about what is at stake, and while its frameworks and language can provide a grammar for exploring contested political claims and attachments, its emphasis on possession and reification is less useful for thinking about sexuality and faith themselves. Our argument is not that sexuality and religion should return to functioning as socially embedded formations (to the extent they no longer work in this way within liberal polities such as Britain, which we, like many others, would question). Rather, what we want to consider is what it might mean to take the recalibration of property in faith and sexuality, which equality law promises, further. Considering post-propertied versions of sexuality and faith is challenging on several fronts. It requires us to think about what disinvestment and detachment might look like; it also requires ways of imagining sexuality and faith as neither subject formations (to which people belong) nor as chosen goods or properties of the (individual or collective) self. Would this kind of detachment render both too light, losing much of the value that sexuality and faith hold in terms of group identification and belonging? Does it, perhaps, mean thinking about faith and sexuality separately from other kinds of collective ethnic and cultural investments? Conversely, could detachment suggest a stronger investment – in terms of ‘being’ rather than ‘holding’? These are open questions, which bringing property’s organisational logic into the framing of equality politics might help us – even provoke us – to explore.
Thanks to Emily Grabham, Sarah Keenan, Maleiha Malik, Emily Haslam, Daniel Monk, Margaret Davies, Ian McKenzie, Nicola Barker, Phil Hubbard and Maria Drakopoulou. This chapter also benefited from feedback and discussion following presentations at Leeds and Westminster University, and from discussion at the Kent Work in Progress Group.
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1 This is a revised and edited version of a longer earlier paper, which appears as ‘Up Against the Property Logic of Equality Law: Conservative Christian Accommodation Claims and Gay Rights’, Feminist Legal Studies (2013) 21:61–80.
2 Ladele v LB Islington  IRLR 154 (EAT);  IRLR 211 (CA).
3 McFarlane v Relate Avon  IRLR 196 (EAT);  IRLR 872 (CA).
4 R (Johns) v Derby City Council (2011) EWHC 375 (Admin)
5 Reaney v Hereford Diocesan Board of Finance 1602844/2006 (ET)
6 Bull and Bull v. Hall and Preddy  EWA 83; Black and Morgan v. Wilkinson,  EWCA Civ 820.
7 McClintock v Department of Constitutional Affairs  IRLR 29.
8 How religious belief and sexuality have come to function in this way is a complex story. It is also a very partial development, for sexuality and religion in Britain are not only conflicting interests or grounds confronting each other in disputes precipitated by equality law.
9 Boy Scouts of America v. Dale 530 U.S. 640 (2000).
10 E.g. see Grainger PLC v Nicholson  IRLR 4.
11 Ladele v LB Islington  IRLR 211 (CA).
12  IRLR 211 at 213.
13 For a different approach, see Malik (2011); MacDougall and Short (2010, 149).
14  IRLR 196 (EAT);  IRLR 872 (CA).
15  IRLR 872 at 876 (CA).
16  IRLR 154 at 163 (EAT).
17 The fact that a significant number of the cases involve black litigants raises for us important questions – particularly, in relation to how the racialised experiences of Black British employees affect individual choices to enact, and organisational decisions about responding to, non-conforming behaviour within public organisations. To what extent, for instance, do organisational cultures informally accommodate white non-compliance in ways not shown to black and other minority workers? Court judgments also need to be read in terms of their naturalisation of mainstream, white-dominated Anglicanism at the expense of more charismatic and evangelical alternatives, reinforcing the cultural association of Black churches with homophobia – an association explored in other contexts by Douglas, Jivraj, and Lamble, eds. (2011); see also Herman (2012).
18 For a discussion of non-property, see D. Cooper, ‘Improper attachments, or who do anti-abortion posters belong to?’ http://davinascooper.wordpress.com/2014/03/29/improper-attachments-or-who-do-anti-abortion-posters-belong-to
19 Certainly, in considering the right of public and private bodies to control employees or service users’ behaviour, it is important to recognise the extent to which Christian organisations have sought to exercise control over the marital and sexual lives of their employees and members, through the legal right to exclude those, such as ‘out’ gays, whose personal decisions and identities do not conform to wider organisational values.
20 Although see case of Eweida and Others v. The United Kingdom; Judgment of the ECHR 15 January 2013, paras 106, 109.
21 For a useful discussion of ways of resolving equality disputes outside of the courtroom, see Afridi and Warmington (2010); see also Valentine and Waite (2012).
23 Johns v Derby CC  1 FCR 493.
24 The proprietary character of this liberal form of multicultural belonging – in the sense of the obligations and conditions that attach to members – is not highlighted in the court decisions. This is left to other state processes. While an explicit depiction of citizens or residents as properties of the liberal nation-state (able to be deployed to extend the state’s influence and impact) is rarely articulated in contemporary Britain, the terms of belonging frequently are – whether it is to speak English, become employed, bear an appropriately shaped body or refrain from ‘radical’ political activity (also Grabham 2009).
25 Ladele, ET quoted in CA, 215.