In my column on Sunday, I invoked the criteria used in Maya Forstater’s 2019 case in the U.K. as a useful standard for private employers in determining which viewpoints they should tolerate from their employees — or, in the case of individuals, which organizations they deem worthy of their philanthropic support. I was not discussing speech covered by the First Amendment but rather the issue of the standard that private companies and individuals should use.
In the Forstater case, and in accordance with British employment law, the judge cited the five criteria known as the Grainger test, which a “philosophical belief” must satisfy for it to receive protection under the 2010 Equality Act:
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The belief must be genuinely held.
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The belief must not simply be an opinion or viewpoint based on the present state of information available.
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The belief must concern a weighty and substantial aspect of human life and behavior.
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The belief must attain a certain level of cogency, seriousness, cohesion and importance.
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The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not be in conflict with the fundamental rights of others.
Obviously, these standards are subjective. Take the belief that it is morally permissible to kill unborn children throughout all nine months of pregnancy. Is that worthy of respect in a democratic society? Pro-life advocates would argue it isn’t, while pro-choice advocates would argue the same for opposition to “abortion rights.” Yet the clause “worthy of respect in a democratic society” implies that issues that people continue to disagree on — i.e., matters of ongoing debate and controversy — are covered whereas those that violate settled social norms are not.
In the Forstater case, the judge gave the examples of Nazism and totalitarianism as being disqualified from protection under Grainger (section 5) in the context of employment. In the U.S., we might put support for the KKK in this category, as well as support for terrorist groups.