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.
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. 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.
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.
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.
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.
 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
 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.
 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.