Religious Rights vs Gay Rights - a pre-publication verison of my chapter in the OUP volume Religious Freedom and Gay Rights.
The UK has seen a
revolution in its moral and legal attitudes over the last couple of centuries,
particularly with regard to discrimination.
One of the earliest
beneficiaries of changes to the law to protect minorities from unfair
discrimination was the Roman Catholic community. The Catholic Relief act in
1829 aimed to protect Roman Catholics from such discrimination. Legislation to
protect Jews was soon to follow. Today, our freedom to hold and espouse, or
reject and criticise, different religious beliefs, is protected by law.
Our moral attitudes
towards women, black people and gay people have also shifted dramatically, and
this too has been reflected in the law. Gone are the days when women could be
refused employment or the vote because they are women. Gone are the days when
hotel owners could put up signs saying “No blacks”. Gone, too, are the days
when men having sex with men in private risked imprisonment.
Today, most of us
subscribe to the principle that the State and the law ought
to treat all citizens equally. They should not discriminate between citizens or
groups of citizens, granting privileges to, or penalizing, one group but not
another, unless there is some difference
that justifies that difference in treatment.
Of course it isn’t always wrong for the State or the law to discriminate. We suppose it is right that the State should withhold from children rights and privileges that it extends to adults, and only progressively afford them those rights as they mature. But there is an obvious justification for that: younger children are not sufficiently mature to exercise those rights and privileges responsibly. It may also be legitimate for the State to make, say, breast cancer screening freely available to all women but not all men, on the grounds that the risk to men is significantly lower.
However, almost all of
us accept that such discriminatory practices are proper only where there exists
a difference between the two groups that actually justifies treating them
differently.
So, for example, we
suppose it is unacceptable for the State to withhold the right to vote from
black people or from women. Racial and sexual differences may be relevant when
it comes to whether people have a right to certain medical benefits, but it is
irrelevant to whether they should have the vote.
The British public has
largely come round to the view that State and the law should be neutral in this
way. Most of us believe the State and law should treat all citizens equally,
irrespective of their sex, race, religion, or sexual orientation. Our legal
framework largely reflects this view.
What role did religion
play in this moral and legal revolution? In fact, as we survey the history of
these developments, we find religious and non-religious arguments being used
both to defend the old, discriminatory status quo, and also to justify new,
anti-discriminatory laws.
For example, we find
religious ideas and arguments being used to defend slavery, keeping the races
separate, and withholding the vote from women. We find religious people arguing
that God intended the races to stay apart, and also for women to take a
subservient role
Yet we also find
religious people in the vanguard of those fighting for equal rights for women,
black people, and indeed for gay people. We find religious arguments and
justifications being given here too (such as that God made all of us “in his
image”).
We also find
non-religious arguments given from both sides of the fence. Not only do we find
secular arguments given for giving women and black people equal rights, we also
find non-religious ideas and arguments used to justify withholding certain
rights from such groups (such as that women and black people lack the native
wit and intelligence required to vote responsibly, and that granting them such
rights and freedoms will therefore undermine the social fabric).
We have been asked to
comment on the moral and legal frameworks that govern tensions between claims for
equal treatment of gay people and for religious freedom. The point I am
emphasizing here is that, as we survey the history of debates about equal
rights in this country, what we see in each case is not, as is often suggested, a clash between religious world views
on one side and non-religious world views on the other. Rather, we find a
variety of arguments and justifications – religious and non-religious – coming
from both sides of each debate.
This diversity of
religious and non-religious arguments and positions for and against claims to
equal rights continues today. We find non-religious people arguing on
non-religious grounds (e.g. consequentialist grounds) that same sex marriages
should not be permitted. Yet we also find religious people arguing on religious
grounds that such marriages should be permitted.
The current situation
We have been asked to
consider gay rights. What is the current public attitude towards gay people and
gay sex? The vast majority of British people see nothing morally wrong with same
sex relationships, per se. Indeed,
they support legislation giving people who have sex with people of the same sex
equal protection under the law.
It seems that, even
among Christians, such liberal attitudes are prevalent. A recent Ipsos MORI
poll indicated that among those classifying themselves as Christian (52% of the
population), those who disapprove of sexual relations between two adults of the
same sex (29%) are greatly outnumbered by those who do not (46%). The same poll
also found that six in ten Christian respondents (61%) agreed that homosexuals should
have the same legal rights in all aspects of their lives as heterosexuals.
True, the Catholic
Church continues to disapprove of same sex relationships. The official Catholic
position on gay sex is usually justified in terms of “natural law”, a justification
that, as it is usually developed, also entails the sinfulness of masturbation
and contraception. This is a justification that even many Catholics find
unconvincing. A friend and colleague of mine, a Jesuit priest who is very
knowledgeable about natural law theory, tells me that he sees nothing morally
wrong with same sex relationships.
The law that currently
protects gay and bisexual people from discrimination in the work place, in the
provision of goods and services, and so on, is unlikely to be repealed in the
foreseeable future. Still, there remain religious and non-religious people who
believe that they are entitled to discriminate against people having gay sex.
In particular, some Christians who disapprove of same sex relationships have
argued that they ought to be exempt
from the equality legislation that applies to others. They maintain that such
legislation restricts their own religious freedom to act in accordance with
their religious conscience. It is on such claims of exemption to existing law that recent legal cases and media
attention have tended to focus.
Recent examples involve
a case in which the religious owners of a hotel refused, on religious grounds,
to give a gay couple a shared bedroom, and a case in which prospective foster
parents who wanted to able to teach children in their care their religious view
on the wrongness of same sex relationships claimed their religious freedom
would be unjustifiably curtailed were they not permitted to foster for that
reason.
In both cases, it was claimed
that religious rights and freedoms were being trampled - that the rights of gay
people were “trumping” the rights of the religious.
Conscientious objection
Of course, we do,
rightly, allow for some exemptions to the law, and to professional duties, on
the basis of, for example, conscientious objection. We believe pacifists deeply
committed to non-violence should not be forced to take up arms. We do not require
NHS doctors who have a deep moral objection to abortion to perform abortions.
They are exempt that duty.
Exactly when someone
should be exempt on the basis of conscientious objection is, however, a hard
question to answer. On the one hand, we can’t allow that just any appeal to
conscience provides grounds for exemption. For then the law becomes unworkable.
I could break any law I liked and claim immunity on the grounds that my
conscience required me to do so. On the other hand, we don’t want to say that
in no case can a claim of conscientious objection constitute good grounds for
exemption. So we need to develop criteria that determine when it’s right to
exempt someone on the basis of conscientious objection, and when it is not.
What sort of criteria
ought we to apply? As I say, that is a hard and complex issue. Many factors
should probably be taken into account, including: (i) is the objection deeply
felt and can the objector give a coherent account of it? and: (ii) if we allow
for objection, or many such objections, will we infringe the rights of others,
and/or is allowing the objection likely to have a serious negative impact on
the quality of the lives of others?
While many factors probably
need to be factored in when weighing up claims of conscientious objection, I am
not persuaded that having a specifically religious
objection should carry any additional weight.
Yes, I believe a Roman
Catholic doctor who has a deep religious objection to abortion ought not to be
required to perform an abortion. But that is because I believe no doctor who
has a very deeply held moral conviction that abortion is wrong should be
required to perform one.
Are we to say that a
Roman Catholic doctor who morally objects to abortion should be exempt such
duties, but not a doctor with an equally firm and considered objection to
abortion who happens not to be religious? If these two doctors have an equal
claim to be exempt, then it’s not the former doctor’s religiosity that’s doing
the justificatory work. On the other hand, if we exempt the Catholic doctor but
not an atheist doctor, then what justifies us in treating them differently? Why
should the conscientious objections of the religious carry more weight than
those of the rest of us? Personally, I cannot see any justification for giving
the religious conscience greater weight.
Are we are going to accept
that hoteliers with deep-seated objections to same sex relationships do not
have the right to refuse gay couples a room, unless, that is, their objections
are religious? And if the addition of a religious dimension to the objection is
sufficient to exempt those hoteliers the law, what about hoteliers with
deep-seated religious objections to the mixing of the races? Do they, by virtue
of the religious character of their objection, thereby earn the right to refuse
mixed race couples a room?
I cannot see that the
addition of a specifically religious
dimension to the conscientious objection of hoteliers who object to making
rooms available to gay couples or mixed race couples requires us to take their
claim to be exempt from anti-discrimination laws any more seriously than if they
objected on non-religious grounds.
An hotelier who refuses a
mixed race couple a room is a bigot. They will rightly fall foul of the law. It seems to me that, if an
hotelier should turn out to be, not just a bigot, but a religious bigot - a member of the Dutch Reformed Church in South
Africa, for example, whose views on racial mixing are underpinned by theology -
that would not lend any further credence to the thought that the law should not
apply to them.
It seems to me that the same moral applies in the case of hoteliers who want to
refuse gay couples a room.
Incidentally, it became
clear during the conference that most of who believed that hoteliers with
specifically religious objections to giving a gay couple a shared bedroom
ought, for that reason, to be exempt legislation requiring them to do so were far
less sympathetic to the view that hoteliers with specifically religious
objections to giving a mixed race couple a shared bedroom ought, for that
reason, to be exempt legislation requiring them to do. Such individuals have
some explaining to do. They need to explain (i) why the addition of a religious
dimension to the former hoteliers’ objections qualifies them for exemption, unlike
those with non-religious objections.
They also need to explain (ii) why these grounds for exemption do not then
extend to the case of hoteliers objecting on religious grounds to giving a
mixed race couple a room.
It was suggested during the
conference that there is a difference between these two sets of hoteliers that
explains why those refusing on religious grounds a same sex couple a shared
room should be exempt equal rights legislation, but not those refusing on religious
grounds a mixed race couple a shared room. The suggestion was that what the
former hoteliers are objecting to is behavior.
These hoteliers need not refuse individual gay people single rooms. They just
refuse gay couples shared rooms because of the sexual activity those couples
might then engage in. It is that sexual activity that these hoteliers find morally
repugnant.
However, we might ask:
why, exactly, does the fact that religious hoteliers want to discriminate
against individuals on the basis of their behavior,
rather than some other characteristic, mean that we should be prepared to allow
such discrimination to take place? Should we, then, allow Christian hoteliers
to refuse Muslims bedrooms on the grounds that, while Muslims are fine in the
lobby, they are likely to pray towards Mecca in the privacy of their bedrooms,
and such non-Christian religious observance is not something the Christian
hoteliers believe they should facilitate.
But in any case, even if
we did permit such discrimination against behavior, it is precisely behavior that I am supposing the hoteliers
refusing a mixed race couple a room are objecting to. They don’t turn away
anyone on the basis of the colour of their skin. Rather, these hoteliers will refuse
a mixed race couple a room because of the behavior they think that couple is
likely to engage in while there. Sexual activity between people of different
races might occur, and it is that behavior that the hoteliers find morally
repugnant. So, again, why should we exempt the religious hoteliers wanting to
turn away gay couples for fear of what they might do, but not these hoteliers wanting
to turn away mixed race couples for fear of what they might do?
Are Christians being victimized?
There is clearly a
perception among some Christians that
the laws that prohibit discrimination against gay couples are “anti-religious”.
Here is an illustration.
In the court case
brought by the prospective foster parents wanting to be able to tell children
in their care that homosexual relationships were morally wrong, their Counsel,
Mr. Diamond, opened his argument by saying
This case raises profound issues on the question of
religious freedom and whether Christians (or Jews and Muslims) can partake in
the grant of “benefits” by the State, or whether they have a second class status. [Johns vs. Derby
City Council (2011), section 33.]
Diamond identified the
issue before the court as being “whether a Christian couple are ‘fit and proper persons’ to foster (and,
by implication, to adopt) by reason of their faith” and “whether Christian (and
Jewish and Muslim) views on sexual ethics are worthy of respect in a democratic
society.” Diamond submitted his clients were in effect fighting “a blanket
denial on all prospective Christian foster parents in the United Kingdom” - indeed
“a blanket ban against all persons of faith” - and an “irrefutable presumption
that no Christian (or faith adherent) can provide a suitable home to a child in
need of a temporary placement” (Ibid).
The judges, Lord Justice
Munby and Justice Beatson declared: “It is hard to know where to start with
this travesty of the reality." (Ibid, section 34)
The judges continued:
All
we can do is to state, with all the power at our command, that the views that
Mr Diamond seeks to impute to others have no part in the thinking of either the
defendant or the court. ... No one is asserting that Christians (or, for that
matter, Jews or Muslims) are not ‘fit and proper’ persons to foster or adopt.
No one is contending for a blanket ban. No one is seeking to de-legitimise
Christianity or any other faith or belief. ... No one is seeking to give
Christians, Jews or Muslims or, indeed, peoples of any faith, a second class
status. On the contrary, it is fundamental to our law, to our polity and to our
way of life, that everyone is equal:
equal before the law and equal as a human being endowed with reason and entitled
to dignity and respect. (Ibid.)
Despite this statement,
Christian Legal Centre spokesperson Andrea Minichiello Williams claimed afterwards,
on the basis of the judges’ ruling, that “Britain is now leading Europe in
intolerance to religious belief”, and the CLC claimed that “the High Court has
suggested that Christians with traditional views on sexual ethics are
unsuitable as foster carers, and that homosexual ‘rights’ trump freedom of
conscience in the UK.” (reported in “High Court Judgement Suggests Christian
Belief Harmful to Children, Fostering by Christians now in Doubt”, Christian Concern, available online at:
http://www.christianconcern.com/our-concerns/religious-freedom/breaking-news-high-court-judgment-suggests-christian-beliefs-harmful-
The Christian Simon
Barrow, from the Christian think tank Ekklesia,
commented on the above legal case:
It
is wrong to call this judgment a “landmark ruling”, since it does not lay down
any new principle but upholds and affirms the law... However, it does further
confirm what we at Ekklesia have been arguing for many years - which is that
the era of Christendom, when Christian institutions and beliefs might be given
special privilege, regard and exemption denied to others, is now over. For many
- including Christians who wish to recover the levelling core of the Gospel
message - that is good news, not a threat. Quoted at Ekklesia “Misleading Claims About Discrimination Against
Christians” at http://www.ekklesia.co.uk/node/14235
The Christian Jonathan Bartley, also from Ekklesia, has said
about this and similar legal cases:
People should be aware that behind
many such cases there are groups whose interests are served by stirring up
feelings of discrimination of marginalisation amongst Christians. What can
appear to be a case of discrimination at first glance is often nothing of the
sort. It is often more about Christians attempting to gain special privileges
and exemptions. (quoted at “BA worker was not discriminated against over Cross
ban” at Ekklesia http://www.ekklesia.co.uk/node/6550
This last Christian opinion seems to me to be correct.
I do not want to
suggest that there are no cases in which the freedom of religious speech has
been unjustly restricted. An example involved the Christian Adrian Smith, an
employee of Stafford Housing Trust, who reportedly expressed the view, in his
own time, on a personal page of Facebook, that allowing gay weddings in
churches was a “step too far”. As a consequence, Smith was demoted to a much
less senior and well-paid job.
Smith was undoubtedly
treated unfairly. That is the view of Peter Tatchell, perhaps Briatain’s
best-known gay rights activist, who said the following about the case:
Adrian Smith made his comments in his own time on his
own facebook page, which is not viewed by the general public. He expressed an
opinion. He did not personally discriminate against anyone. There is no
evidence that he has treated any of his gay housing clients adversely. Smith
voiced his opinion in a calm, non-abusive manner. He was not threatening or
intimidating. His only possible
misdemeanour is that he made his comments on a facebook page where it mentions
that he works for THT, which is allegedly contrary to THT regulations. This is
hardly a major crime. It certainly does not warrant the disproportionate
punishment inflicted upon him. (…) In a democratic society, Adrian Smith and
others have a right to express their point of view, even if some people think
it is misguided and wrong. Freedom of speech should only be penalised in
extreme circumstances, such as when a person incites violence against others.
Smith's words did not cross this threshold. Peter Tatchell,
“Christian Manager Fights Demotion Over 'Homophobic' Facebook Comment” The
Huffington Post. Online at
http://www.huffingtonpost.co.uk/peter-g-tatchell/adrian-smith-homophobic-comments_b_1147873.html
Tatchel even offered
to testify in court in Smith’s defence.
So there are some cases (well, one at least) in which
the rights of the religious to voice their religious opinions have been unfairly
curtailed. However, other cases in which which it appears that Christians have
been unfairly gagged turn out, on close inspection, to be something else.
At the end of this
conference on Religious Freedom and Equality (at which I presented a shorter version
of this paper), some of the speakers, myself included, were invited to discuss
the issue of religious freedom in a Q&A session organized at the Christian
Legal Centre (CLC). On arriving, all those attending were given a double-sided
sheet of paper which listed a string of cases in which Christians had, it seemed,
been treated unfairly - investigated, suspended, sacked, prevented from
fostering, and so on - because they had dared to express their Christian views.
To get an impression of the reliability of these anecdotes, I picked one at
random and looked it up online while the CLC’s representative was still introducing
the event. The CLC’s handout said:
Peripatetic teacher Olive Jones – dismissed for
offering prayer to family.
On the face of it, this sounds like a case in which a teacher has
indeed been treated very unfairly. A teacher sacked merely for offering to pray
for a family? Outrageous!
However, some quick research online revealed that this case was not
quite what it appeared to be. The situation was this. A fourteen year old girl
with cancer, who could no longer attend school, was assigned a home maths
teacher by a local council-run tuition service. The teacher, Olive Jones, spoke
about miraculous healings and offered to pray both with and for the girl. The girl’s
mother said that Jones used every opportunity to talk about religion. She said her
daughter was traumatized by Jones’s comments and offers, and that she repeatedly
asked Olive Jones to stop “preaching” to her daughter. The mother added, “the
meetings with Ms. Jones became increasingly traumatic and [sic] decided it was not appropriate for this woman to come to my
house.” As a result of the mother’s complaint, Jones was suspended. Jones had been
warned about her conduct three years before when another family complained
about similar behaviour.
Olive Jones immediately went to the CLC, which took up her case and
issued a press release stating that Jones had been sacked the day after the
complaint (which was untrue). As a result of this press release, the Daily Mail ran a front page headline
article in which it in turn repeated the untrue claim that Jones had been
sacked. In fact, Jones had merely been suspended while her employers
investigated. They offered Jones several opportunities to come in and offer her
side of the story. Instead, Jones went to the CLC. Jones is reported to
have said about this case:
I am
surprised that a country with a very strong Christian tradition has become a
country where it is difficult to talk about their faith.
The Daily Mail said in its editorial that this
case was further evidence that
the
slow takeover of this country by politically correct zealots, continues to
grow. Daily Mail, Sunday December 20th 2009
On closer
examination, the Olive Jones case turns out
to be something very different from what one might have guessed looking at the
CLC’s handout, press release, or the resulting Daily Mail editorial. Clearly, what was complained about was not an innocent case of “offering prayer
to family” but persistent preaching that caused both the daughter and her
family considerable distress. Surely it was right that Jones’s employer suspend
her while they looked into this complaint, given both its serious nature and also
the fact that this was the second such complaint that had been made about
Jones. Nevertheless, here was the CLC, two and a half years later, handing out leaflets
stating that Jones had been sacked for “offering a prayer to family”. In the Q&A
session immediately after the CLC representative had spoken, I asked if Jones
had at least eventually been sacked.
Someone more knowledgable about the case was then summoned, who merely repeated
the false claim that Jones was sacked the day after the complaint was made.
This is just one
case drawn from the CLCs long list of supposed injusticies distributed at their
meeting. If the first case picked at random should turn out, on closer
inspection, to involve no obvious injustice at all, and indeed if the CLC
should, years later, still be providing information about the case that is not
only highly misleading but actually false, that suggests to me that we ought
not to place too much confidence in other alleged claims of injustice made by
the CLC and subsequently repeated across the media.
Is the freedom of
British Christians to speak freely about their faith, and act accordance with
their religious conscience, being significantly and unjustly undermined? Media-hyped
anecdotes such as that concerning Olive Jones have succeeded in creating that
impression in certain circles, but many – including many Christians – remain
skeptical.
Not every case
reported in the media is, however, as ludicrously insubstantial as the Olive
Jones case, which was almost entirely a product of spin and false reporting. I
have already said that the Adrian Smith case involved a genuine injustice. Other
cases do at least raise intersting and important issues – about conscientious
objection, for example. The cases involving the prospective foster parents
wanting to tell children in their care about the immorality of same sex
relationships, the BA employee who wanted to wear a crucifix, and the hoteliers
who wanted to be able to turn gay couples away, when the facts are set out
fully and accurately, do at least raise interesting questions. However, I am
not persuaded that in any of these cases was any unjustice done.
If the law, or other
rules binding foster parents, says that foster parents should not teach
children in their care that same sex relationships are morally wrong (on the
grounds that e.g gay children coming under the influence of such foster parents
might be seriously harmed as a result), I do not see why prospective foster parents
who want to teach such views to children in their care should be exempt because their teaching is religious.
If a British Airways
dress code for its employees bans all jewellery, period, I do not see why the State
should step in and guarantee an employee’s right to wear certain jewellery because it is religious (certainly not
in case where there is no religious requirement that such items should worn).
If hoteliers want to
turn gay couples away, I do not see why they should be exempt equal rights
legislation that prohibits such discrimination because their discrimination happens to be religiously based.
In short, much of
the evidence that there is widespread unjust treatment of Christians consists
of (i) misleading anecdotes based on spin and even false reporting (as in the
Olive Jones case) or (ii) cases (such as the three above) in which alleged injustice
has not, so far as I can see, been demonstrated.
This conference
began with an opening statement in which it was suggested that religious belief
should be treated equally by the
State and the law. Which indeed it should. It should not be accorded a lesser
status than other forms of belief. But neither should it have a special,
privileged status – not, that is, unless that special status can be justified.
What became clear,
during the course of the conference is that many of those attanding do not, in
fact, want equal treatment. Rather, they want special treatment. They want
religious symbols to be given special, privileged status not accorded other
symbols. They want religious beliefs to get special, privileged protections, exemptions
or exclusions not accorded other forms of belief.
Special treatment
can sometimes be justified, but the onus is on those demanding it to justify it,
and as I say, that justification seems to me to be something that those
demanding such treatment in this case have failed to provide.
Other issues regarding religious freedom and
equality not addressed at this conference
Finally, I want to
set the above discussion within a wider context. This conference is entitled
“Religious Freedom and Equality: Emerging Conflicts in North America and
Europe”. However, the focus of the conference has been narrow. We have been
asked to focus exlusively on cases in which some religious people have fallen
foul of equal rights legislation protecting gay people. Other controversial issues
to do with religious freedom and equality have been excluded. Below is just one
example.
There are several
State funded schools close to where I live. However, despite my being a tax-payer who is paying towards
all these schools, I am not free to send my child to all of them. Some discriminate
against my children on religious grounds (e.g. Catholic schools that are
oversubscribed – which they invariably are – prioritize Catholics). This kind
of discrimination has serious repercussions for many families across the UK,
quite a few of which will, for example, feign Catholic conviction and attend
church regularly in order to get a priest to sign a piece of paper saying that
they have demonstrated sufficient commitment for their child to qualify as a bona fide Catholic. One of the reasons such
State-funded religious schools do well and are usually oversubscribed is that
they tend to get better results by excluding children from poorer backgrounds[1].
Not suprisingly, then, parents are often desperate to get their child into the local
State funded religious school rather than the sink school alternative (There
has, incidentally, been a huge increase in the number of State-funded religious
schools across the UK.)
There is growing
conflict on this issue in the UK. The ommission of this and similar issues in a
discussion of “religious freedom and equality” in the UK inevitably creates a very
lopsided impression of the overall political state of play.
Postcript
It was suggested
prior to my writing the above contribution that it would be helpful if John
Finnis and Christopher McCrudden should have sight of it so they could respond
in their pieces, and that I should then have an opportunity to respond in turn.
What follows are my comments on the Finnis’s and McCudden’s responses to the
above.
My paper asks why
the objections of a doctor to performing an abortion, or a hotelier to renting
a gay couple a hotel room, or a registrar to performing a civil cermemony for a
gay couple, should carry more weight than those who similarly object, but not
on religious grounds. Why should the moral objections of a religious be given greater
weight than those of the non-religious? I said that I could see not, as yet,
see any justification for privileging religious belief in this way.
Both Finnis and
McCrudden attempt to answer this question. Before I look at their answers, a
point of clarification.
It is
uncontroversial that the conscientious objections of some religious people can
rightly be deemed more weighty than those of other non-religious people. Even
the most hard-nosed secularist can agree that, for example, a Roman Catholic
doctor’s objection to performing abortion is a rather more weighty than is the
objection of a Manchester United fan to giving rival Manchester City fan a room
in his hotel. We can acknowledge that the former objection is more weighty
without assuming that religiousity is what makes it so (for there are many
other differences that might account for the difference in weightiness).
We can all also
agree that moral objections are, as a rule, rather more weighty than, say,
merely aesthetic objections. Consider two doctors, both objecting to performing
abortions, one on properly moral (if not religious) grounds, the other on aesthetic
grounds. The latter doctor merely find certain surgical procedures, such as
abortion, deeply “yukky”. No doubt the moral objection should carry greater
weight. Similarly, someone with a genuinely moral objection (if not religious) to
performong a civil ceremony for a gay couple should be taken rather more
seriously than somone who objects because, while not morally opposed to gay
sex, finds the idea of both that sexual act, and those who engage in it, “yukky”.
In short, unless e.g. the objector’s distaste is, say, likely actually to impede
the performance of a duty (conceivable in a medical case), moral objections should be given greater weight than objections of a
merely aesthetic sort. We can all agree that moral objections are indeed much
weightier than some other forms of objection – including merely aesthetic
objections.
Now, religious
objections often have a moral dimension. Where that is the case, then
obviously, other things being equal, they should be given greater weight than,
say, merely aesthetic objections. But of course this does not establish that religious objections should, by virtue of their
being religious, be given more weight than non-religious objections.
My question was
this: why, if, for example, two hoteliers have equally deeply considered and deeply
held moral objections to renting a
gay couple a room, should the fact that the objections of the former but not
the latter are religiously-grounded mean that the former’s should be given greater
weight? Similarly, if two doctors both have deeply held moral objections to
abortion, why does the fact that only the former doctor’s objections are
religiously-based justify us in giving the former’s greater weight?
Why, other things
being equal, should the specifically religious
conscience carry greater weight? I have not, as yet, found a good answer to
this question.
Response to John Finnis
In his brief response
to my paper, John Finnis attempts to provide such an answer:
The ground for treating
religious conscience as specially important is that it is really of great importance
that people should seek and form a responsible judgment about an issue of
unsurpassed importance: the truth about the origin, significance and destiny of
the entire universe and of human beings as the only beings, within our
experience, who are capable of engaging with reality on this uniquely profound
way. Indeed, people have a moral duty to interest themselves in that issue, and
to seriously seek the truth about it. A society which fails to acknowledge that
duty, at least indirectly, is to that extent frivolous, and in a deep, implicit
way is under-cutting its own claim to be taken seriously and defended against
its enemies.
Finnis then
immediately concludes:
So: acknowledging the right to liberty of religious practice has
nothing to do with giving religious privilege.
I will comment on the
longer quote first. Of course it is important that people reflect occasionally on
the Big Questions about meaning, purpose, morality, and so on. A society made
up of individuals who rarely if ever take a step back and ask themselves such searching
questions is, I believe, a dangerous thing. But why does this require that we
give the religious conscience greater weight?
I have spent most of
my life pondering such issues. But I am not religious. Neither are very many
other people who are nevertheless deeply engaged by such questions, who perhaps
pursued philosophy at school, who buy works of popular philosophy, who attend
public debates and discussion on such questions, and so on. They too “seriously
seek the truth”, as Finnis puts it (indeed, they are often no less committed,
and sometimes rather more committed, to that task than their religious
counterparts).
So my question to
Finnis is: why does the undeniable fact that it is important we think responsibly
about such Big Questions entail that the conscientious objections of the someone
who reflects on such questions and embraces religion should carry more weight
than the conscientious objections of someone who similarly reflects but is an
atheist or agnostic? Finnis supplies no answer, and so provides no
justification for giving the religious conscience greater weight.
Now let’s turn to shorter of the above quotes: the conclusion Finnis
immediately draws.
That acknowledging
the right to liberty of religious practice has nothing to do with giving
religious people a privilege is obviously true. Like Finnis, and indeed most of
my fellow humanists, I believe in a right to liberty of religious practice.
Religious and non-religious people have an equal right to express their views,
raise their children as they see fit, conduct their meetings and services and
so on, without interference. Finnis is correct - that freedom certainly has nothing to do with giving religous
people a privilege.
However, the issue I
raised is: why should the objections of the religious carry more weight than
those of the non-religious? This, Finnis has failed explain. And to suppose
that the objections of the religious should carry greater weight is indeed to privilege them.
Finnis then adds:
To treat a genuine
religious objection (such as [Law] postulates) to mixing of races as of no more
weight (as he holds) than a quasi-aesthetic prejudice against people of
different colour is, in my view, misguided.
Finnis is here attacking a straw man. First of all, I did not
compare a religious objection to the mixing of the races to a prejudice against
people of a different colour (I thought I made that clear, but it seems Finnis
has misunderstood). The question I actually asked was: why should the
conscience of someone with religious objections to mixing the races (or gay
couples, etc.), carry more weight than someone who similarly objects but on
non-religious grounds?
Secondly, and more importantly, I did not compare religious conscientious
objections to objections made on merely “quasi-aesthetic” grounds. I never
discussed “quasi-aesthetic” objections, whatever they are exactly. As we have
already noted, given that a religious conscientious objection is often also a moral
objection, it will then carry greater weight than a mere aesthetic objection
(as I explained above). Finnis is certainly right about that. But of course that does not justify giving religious objections greater weight than their
otherwise similar, moral, but non-religious counterparts.[2]
The question I raised is why, when two objectors make in all
other respects similar moral
objections to performing a certain legal or professional duty, should the fact
that only one of the objections is religious mean that it should carry greater
weight? Finnis has not come close to providing a satisfactory answer.[3]
Respone to McCrudden
Christopher McCrudden
sets up his piece with my remark that, when it comes to assessing claims of
consientious objection, I am “not persuaded that having a specifically
religious objection should carry any additional weight.” After an interesting
discussion of European legal cases and in particular the idea of “reasonable accommodation”,
McCrudden finishes by suggesting that “the claim made by Ms Ladele addresses
the issue raised by Stephen Law’s chapter and proposes a way through.”
The Ladele case
involves a registrar employed by a local authority who objected to performing
civil partnerships. Ladele objects to such partnerships on religious grounds. Her
employer insisted she perform them and she resigned as a result. McCrudden
argues that her employer should have at least considered whether a “reasonable accommodation”
might be made in Ladele’s case. “Alternative methods by which the local
authority’s aims could have been met without discriminating against the
applicant were not considered.” They should have been.
I take no view here
on whether Ladele’s employers should have accommodated Ladele’s desire to
continue to work but without her performing the civil ceremonies to which she
objected, or whether they should at least have looked into the case for doing
so. Perhaps it is right that, in these circumstances, the objections of an
employee such as Ladele should be accommodated. As I said in my original paper,
such cases of conscientious objection are complex, and many factors probably
need to be taken into account. It may be that, in this case, they do tip the
balance in favour of making an accommodation.
However, I do not see
why the fact that Ladele has a specifically religious
objection to performing such ceremonies means that there is a stronger case for
her employers or the courts to look into making an accommodation than would be
the case if Ladele’s objection was non-religious (but no less moral). McCrudden
seems to suggest that the addition of religiousity to a conscientious objection
does indeed lend additional weight to the claim that an accommodation should
then be made or at least considered. And, if I understand him correctly, the
reason McCrudden thinks this extra weight is added is that religion, like
ethnicity, constitutes a core aspect of an individual’s identity.
“Identity” is an
ambiguous term. What does the relevant (for want of a better expression) identity-involving character of a
conscientious objection involve?
Are the moral
judgements of the religious thereby more identity-involving that those of the
non-religious? If not, then the identity-involving character of such judgements
provides no basis for giving extra weight to the conscientious objections of
the religious over the non-religious. If so, then we need some explanation of
why this is so, and also of why a greater degree of identity-involvingness should
lend greater weight to the religious conscience so far as reasonable accommodation
is concerned. McCrudden’s paper does not really explore these issues very much,
if at all. But, if identity-relatedness is to constitute a sound basis for
giving the religious conscience such privileged treatment, this all needs
spelling out.
I know Anglicans
whose religiousity is wishy-washy. I also know atheists whose commitment to
atheism is deep and almost visceral. The suggestion that the formers’ conscientious
objections are more identity-involving strikes me as very dubious.
Even if identity-involvingness
can be shown to justify giving a conscientious objection greater weight (and this
is a big “if” – see below), and if we do then decide to discriminate between
conscientious objections on the basis of their identity-involvingness, then we
should just do that, rather than give the religious conscience blanket greater
weight. Otherwise, we will inevitably end up unjustly giving greater weight to
what will, in many cases, actually be the less,
or at least no more, identity-involving
commitment.
But in any case, why
should we suppose that the identity-inolving character of a conscientious
objection lends it greater weight?
Consider those
football fans who wear their team’s colours, mark their bodies with signs of
their devotion, attend weekly gatherings (football matches) at which there is
singing and chanting, devote a period of each day to reading about the object
of their devotion, who make regular pilgimages abroad (Champions League). Their
homes contain icons to the objects of their devotion. Their sense of community
and belonging transcends national boundaries. Can we reasonably deny that a
Manchester United fans’ love of his or her team, and contempt for their Manchester
City rivals, is not in very many cases, deeply identity-involving?
Should we, then,
give the conscientious objection of a Manchester United fan who refuses to have
Manchester City supporters stay in his hotel greater weight than, say, a hotelier
with an aversion to red hair who turns away “gingers” because the former is,
after all, a football fan, and football allegiance is, as a
rule. Rather more identity-involving? No doubt we would reject the conscientious
objections of both hoteliers to equal rights legislation, but should we
nevertheless give the former greater weight?
Or what of the
Manchester United supporter who wants to wear a Manchester United pin on his BA
uniform? Even if we reject the claim, should the fact that it is, after all, a football supporter’s pin, and thus
deeply identity-involving, give the claim greater weight?
(Incidentally, I can
guess the indignation the above examples will provoke in some religious folk. “You
are suggesting that religious belief is no more important than football allegiance?
How dare you?” But this is, of course, entirely to miss the point.)
What about humanist
views, which are not religious, but are also often deeply identity-involving?
Should the conscientious objections of humanists also be given greater weight?
And what about political affiliations? Why is a liberal’s commitment to liberal
values and traditions, or a white supremacist’s commitment to white supremacist
values and traditions, any less identity-involving than the commitment of an
Anglican to Anglican values and traditions? Does a racist suddenly deserve to
have his claim to be exempt human rights legislation at least taken rather more
seriously (even if it is ultimately rejected) when we discover that he is also
a Nazi white supremacist whose views on race are deeply entwined with his sense
of self?
It is, to say, the
least, by no means clear that the identity involving character of a conscientious
objection lends it any greater weight, let alone significant greater weight.
But, to be fair to McCrudden, the thrust of his paper is legal, not philosophical
or moral. He aims to show that, given certain legal judgements already made regarding identity and discrimination,
a legal case might then be made for
privileging religious belief in a certain way. Perhaps so. But, whetever the
legal merits of the case, to privilege religious in that way would, so far as I
can see, be a philosophical and moral mistake.
When a religious person
raises a serious moral conscientious objection, that objection deserves
carefully consideration. In weighing up whether or not to accommodate the
objection, various factors should be taken into account, including, for
example, the depth of the commitment, its moral nature, and so on. Having taken
these factors into account, it might turn out that an accommodation is indeed justified.
However, we still don’t appear to have been given good reason to suppose that
the religiousity of an objection
lends it any greater weight.
[1] See for example the report “Church schools shun poorest pupils”, The Guardian, 5th March 2012, available
online at: http://www.guardian.co.uk/education/2012/mar/05/church-schools-shun-poorest-pupils?CMP=twt_gu
[2] Interestingly, Finnis suggests that claiming that
specifically religious freedoms are
being trampled is probably not the
best approach when it comes to defending the right of the religious to
discriminate against those in same-sex relationships. In a footnote, he says:
The mentality which regards same-sex
marriage as conceivable, let alone desirable or reasonable, involves a truly
radical break with human experience and reason. The consequent unjust
impositions on religious or religiously motivated activities and associations
are probably best resisted by pointing, not to religious liberty, but to the
way these impositions infringe associational freedom and parental rights, while
pointing in any case to their manifold wrong-headedness about sex and marriage,
to their abuses of children’s innocence, and to their recklessness about the
common good and the nation’s future.
The thought here seems to be that the best way to defend the
rights of the religious to discriminate if same sex-marriage is introduced is
by (i) upholding their associational freedom and parental rights, and (ii)
pointing out that the legislation is in any case wrongheaded and dangerous. Re
(i): I have no problem with Finnis trying to mount a defence of discriminatory
behavior on the basis of associational freedom or parental rights as that
defence would apply no less to non-religious people wanting to discriminate
thus. The non-religious have (or should have) the same associational and
parental rights as the religious. So let us see what sort of case Finnis can
make and then let us assess that case on its merits. The point is, Finnis would
not now be arguing for exemptions or
exclusions on the basis of religiousity per
se – which is the principle I have asked him and others to justify. Re
(ii): by all means let Finnis argue against the legislation as such. What I am
asking is why religiousity per se
should qualify people for special exemptions or exclusions to such legislation
if and when it is introduced. The wrongness of the legislation is a basis for
repealing it. It is not a basis for giving some but not others special immunity
to it.
[3] Finnis
devotes just 500 words to addressing the central question I raise in my essay,
However, he produces a footnote of some 660 words dedicated to showing that my
essay manifests a “distortion
of reality, and some savour of anti-Catholic sentiment.” Anti-Catholic
sentiment is quite a serious charge to level against a fellow academic. On what
evidence does make the suggestion? He points to just two passages. First, he
quotes me as saying:
One of the earliest beneficiaries of changes to the
law to protect minorities from unfair discrimination was the Roman Catholic
community. The Catholic [sic] Relief act
[sic] in 1829 aimed to protect Roman Catholics from such discrimination.
The Act removed various forms of discrimination
against Catholics, for example, allowing them to sit in Parliament and hold
other official roles, and removing impediments to acquiring property. However,
as correctly Finnis points out, the Act did not protect Roman Catholics from
being discriminated against by their fellow citizens. True. But then I did not
suppose, or even state, otherwise. To say that an Act aims to protect people
from unfair discrimination is not to say that it aims to protect them from all forms of unfair discrimination. This
is one for Pedant’s Corner, surely. As to whether any ambiguity in my comment
that Finnis here tries to exploit provides any sort of basis for accusing me of
anti-Catholic sentiment, I’ll leave the reader to decide.
The only other evidence Finnis provides in support of
the suggestion that I am guilty of anti-Catholic sentiment is this:
Law complains that it is discrimination for Catholics to
maintain schools to which the state chooses to contribute financially but
which, when they are over-subscribed,
give preference to Catholics… At no point in his paper is there any explanation
of his choice to focus his paper on Catholics and their schools.
I will remark first that Finnis appears to have
misunderstood my intention in mentioning this complaint. My concern was not to
endorse the complaint. Rather, I used the complaint to illustrate the point
that other significant issues relating to religious freedom and equality are
also at the forefront of public debate in the UK, and yet have been entirely
ignored by this conference which has focussed exclusively on cases in which, it
is alleged, the religious are being
unjustly treated. This conference, and the resulting volume, therefore gives a
rather one-sided impression of the current political state of play in the UK. That was my complaint. Obviously, in
explaining why many people do indeed see the current arrangements regarding
religious school as unjust, I had to present them in such a way that readers
might at least recognize the potential injustice. But what I said about
religious schools is accurate.
Now, Finnis suggests my comment is evidence of
anti-Catholic sentiment because I chose, without explanation in the main text,
to use Catholic schools as an illustration (rather than, say, State-funded
Jewish schools, or State-funded religious schools more generally). So let me clarify: the reason
I focussed on Catholic schools to illustrate widespread public concerns about
state-funding and selection, is that, as
my reference reveals:
The Roman Catholic church, which has repeatedly insisted its schools
are inclusive, comes out particularly badly in the examination of data published
by the Department for Education (DfE) last month and in December.
Three-quarters of Catholic primary and secondary schools have a more affluent
mix of pupils than their local area. http://www.guardian.co.uk/education/2012/mar/05/church-schools-shun-poorest-pupils?CMP=twt_gu
Incidentally, there’s some irony in Finnis’s comment
as he himself uses Catholic schools to illustrate a point without explaining
why he has chosen a specifically Catholic example (“…that we see being imposed, say, on the Catholic school system in
Ontario.” Is this comment evidence of pro-Catholic sentiment? I wouldn’t be
silly enough to draw that conclusion.)
The suggestion that I am guilty of anti-Catholic
sentiment is both serious and, as Finnis must realize, potentially damaging.
Yet Finnis makes it on the basis on the flimsiest of evidence. Finnis’s
suggestion is also, more importantly, a classic example of ad hominem. I suggest it would have been better had Finnis used
these additional 660 words to bolster his 500 word response to the issue I
raised.
Comments
You really should examine the ideas of Vilfredo Pareto...
If you could demolish his ideas concening the danger of liberalism...I would be really impressed...
Forget about undermining other philosophers...Pereto is who you should level your liberal philosphy at :)
At the other end of the spectrum, even if some people are entirely incapable of changing their sexual orientation, it does not follow that the orientation is thereby morally neutral. For example, I'm autistic and therefore have trouble making proper eye-contact, or the right facial expressions and tone of voice. As a result, I can often appear (unintentionally) 'rude'. People who know of my disability tolerate my 'rudeness' because they know I often can't help it. Does that mean it's without qualification morally OK to behave the way I do? No, the most I can hope for is to be shown some forbearance and understanding because of my innate disposition.
It would not be right for me to recommend my 'rude' behavior as an alternative lifestyle 'choice' that anyone may voluntaristically enter into, to celebrate my 'rudeness' as something to be proud of, or to do nothing to minimize my 'rude' tendencies. So the right to tolerance does not entail a right to moral approval. The problem is that involuntary sexual orientations and voluntary sexual behaviors are two separate categories, but the line between them is a blurred one, allowing for ascriptions of moral culpability, approval or disapproval.
The upshot is, I don't think sexual orientation can be equated with race for the purpose of legally prohibiting the peaceful exercise of free speech in expressing moral or religious disapproval of certain sexual practices. You can't volunteer to join a certain race, promote it as a 'lifestyle choice', or choose not to exhibit the traits of that race, all practices which fall within the ambit of moral judgement and ethical discourse.
On another point, it is most unfortunate that disapproval of sodomy has been lumped together with homophobia in public discourse. Apologies in advance for the (necessarily) graphic language that follows. Most doctors would, on purely medical grounds, strongly deprecate the insertion of any object in the rectum. Apart from the hygiene issue, the rectal walls are prone to tears (which can lead to fatal blood poisoning), and very easily punctured by the insertion of foreign objects (which can cause death from internal bleeding). Many have died from direct injuries caused by consensual sodomy, but such deaths usually go unreported, thanks to political correctness in the media. The open acceptance and even promotion of sodomy as an alternative sexual practice is a topic that deserves to be debated as a public health issue, apart from considerations of sexual orientation.
"Why, other things being equal, should the specifically religious conscience carry greater weight? I have not, as yet, found a good answer to this question"
One answer is possibly this:
You believe rational behaviour is seen as a "good" and irrational behaviour as a "bad"...being religious is irrational behaviour therefore a bad.
The model:
It is irrational to believe that crime pays, but criminals have been so let down by there society that they have ended up being too stupid to see that crime does not pay.
Therefore, something must be irrational with the organisation of their society that leaves such members of this society in this stupid position.
Therefor the answer is more reason in this society is needed to remove crime.
In this model however what is ignored is that traditional or residual beliefs (the irrational, i.e. deep-seated beliefs, biologists are always saying that in evolutionary terms we are still hunter-gatherers)...beliefs that if ignored or scorned because of their irrationality and replaced with an ever more reasoning society possibly increase crime, i.e. if everybody obeys the law all the time then it is rational for me to cheat in some circumstances.
Now, not all social action is irrational...but reason only is applicable to social means and not social ends.
And this is what the judges missed...a religious person is primarily interested in ENDS...clearly MEANS are driven by reason...but for you what are your ENDS for society?
Social Equality? This is such a vague term as to be meaningless.
Therefore, a religious view could be seen to carry greater wieght beacuse:
Religious world view: MEANS -> ENDS
Non-religious world view: MEANS -> ?
In the past I would have agreed with you that faith should have no waver on equal opportunities and for many of the reasons that you put forward in your for the most part commendably fair-minded overview. That would still be my view but for the problem of pre-emption. Let me explain.
It is eminently possible to see how an excellent employee who happens to hold religious views could be 'trapped' by a colleague with a hostile agenda. Even if this religious person has not expressed any homophobic attitudes in words or behaviour, the mere existence of even the mildest ambivalent feelings could be used as a pretext to pre-emptively call for his or her dismissal. The usual New Atheist chestnuts about ‘giving cover’ to extremism could be used in order to drum out of a job even the most moderate and reasonable of religious people. Yet no such efforts at entrapment would be set out for the non-religious, even though some of the most aggressively homophobic people that I have met have not been religious. I think the case of the foster parents who were after all looking after pre-pubescent children is a perfect example of what I fear. Remember that the questioning of the foster parents was pre-emptive. As I recall the couple in question had already acted as foster parents for a number of children. Given their ages, we have no reason to believe that the subject of sex in any form had been raised either by the children or their foster parents. Also bear in mind that what one says when caught on the hop is often very different to the reality as it unfolds. Assuming as seems highly probable that the foster parents were motivated by love, it is unlikely that they would lose all affection for the child just because s/he turned out to be gay. Extending this a little further, I have to ask what you would have wanted them to do in the circumstances. Should they have lied about their theological beliefs or feigned nonbelief? Should they have relinquished any aspiration to do a social good by adopting children in need? By choosing to adopt young children where the issue of sexuality was less liable to be raised, it seems to me that they behaved responsibly. If it was found that the children were expressing homophobic views, and if there was evidence that this was linked to the inculcation of religious beliefs by their foster parents, then I would be the first to call for their right to adopt to be revoked. If they believed that homosexuals would burn in Hell and saw it as incumbent on them to tell the children as much then again I would strongly object. However there is as far as I know no evidence to this effect. I do not incidentally assume that those posing this bizarre hypothetical question about a pre-pubescent child with nascent homosexuality had an anti-religious agenda, merely that it is very easy to see how those who do have such an agenda could appropriate such arguments. Then again a worker who fancied his colleague’s job (or his colleague’s wife for that matter) could use the same pre-emptive argument.
Part 2 of 2
However even outside of your rather restrictive overview of changing social attitudes there are countless other examples of sometimes overlapping prejudices. I am registered blind. Like many disabled people, my view of my condition is very different to that of my able-bodied peers. I am painfully aware that for much of the time they will see my impairment as a medical ‘tragedy’ and therefore see me as biologically inferior, even if, being optimistic for a moment, they may (or may not) see me as equal to them in other regards (intellect for example). So would you bar a foster couple from adopting if it turned out that they saw disability as a medical tragedy to be rectified not by a more inclusive society but by God (if they were religious) or science (if they were not)? It’s no good saying that none of the adoptees are disabled as you and I both would not excuse bringing up Caucasian children to be racists. What about if the foster parents were for example militant socialists or humanists? My Christian parents are neither of the above but don’t get my father started on the evils of Thatcherism! So would you accept a social worker asking far fetched questions about disability and party politics or on nascent religiosity? I’m not a gambling man but on this one I’m putting down my smart money that you would embrace hypocrisy.
To conclude, were I persuaded that moderate secularists (which hopefully includes you) could control those atheist fundamentalists who seek nothing less than universal anti-theistic atheism, I would oppose a religious waver. As it stands, the right for religious people to discriminate according to their conscience, with some provisos, seems the least bad option.
You made passing reference to slavery in your paper.
Slavery is interesting...what makes it more so is the fact that without slavery in America jazz music would not have come into existence...and if one believes in contingency rock music would probably not have come into being either.
Model 1
A Black musician takes your band to court in order to prevent your band playing a gig.
His reason is that your band is comprised of white members that play music that originated in black music as a result of black slavery and suffering. You therefore have no right to take advantage of the suffering of black people to play this type of music.
Model 2
Say your drum kit is constructed using the skins of Holocaust victims.
A Jewish musician takes you to court to remove your drum kit from your possession.
His reason is that your drum kit would not have come into existence if it were not for the victimisation of the Jewish People. You therefore have no right to take advantage of the suffering of the Jewish People.
What is interesting here is that in both models the motivating factor is irrational.
I mean, can you give good reasons why you shouldn't be able to play rock music...and could you give good reasons why you shouldn't use such a drum kit?
And yet in each instance the claimants do have a point?
If you mean by random == unexpected
Then yes, I suppose I do stand for the unexpected.
But remember...it is best to never go straight with a philosophical question...best instead to always go forward!
http://www.obrienlawpgh.com/discrimination.html