Aidan O’Neill QC has written at the UK Human Rights Blog about Squaring equality with religion.
…The relationship between the expression of religious beliefs and practice and equality law is a fraught one, and particular difficulty has been experienced in the matter of the application of the law outlawing discrimination…
And later on he has this:
…Thus, for the religious, their attitudes and judgments on right conduct are the very opposite of “prejudice” which anti-discrimination law was supposed to be aimed at. And, they would say, there can be no proper comparison between those who would discriminate on grounds of a religiously informed conscience, and those who so act simply from unthinking incoherent prejudice or bigotry. The pretended comparison between the religious and the irreligious wrongly treats unlike cases alike. The law should, instead, respect those who act on the basis of religiously informed conscience and make reasonable adjustments to accommodate them.
On this analysis, being religious is more akin, for discrimination law purposes, to having a disability. The law does not compare the disabled with the able-bodied and say that they should be treated the same – rather the law requires that account be taken of disability and appropriate measures taken to place the disabled on an equal footing with those without that disability. Similarly, the claim is made that the law should not treat the religious and the irreligious as equivalent; rather, the law should respect the beliefs and consciences of the religious and allow them to act on those beliefs without falling foul of anti-discrimination law…
Meanwhile Alan Wilson wrote Squaring a Human Rights Circle.
So what about religious particularity and freedom from discrimination? Pushed to an absolute degree either could compromise the other. If an atheist could fight a way through the courts to become Pope that would be a magnificent expression of openness, but bad news for the Papacy, which partly exists to define and maintain a particular identity in a way that can only credibly be done by a Roman Catholic. If, conversely, a Police force decided to soft pedal on the misdeeds of some clergy because they are authority figures in the community representing the dominant religion, this is plainly wrong and deprives the victims of a basic justice they have every right to expect.
This becomes even more complicated when people start asserting Christian rights. Jesus’ teaching about non violent resistance (turning the other cheek etc) and the strand of wisdom represented by Romans 13, does not lend itself to crusading militancy. Whenever the Church has ignored this principle it has made a fool of itself and compromised the gospel by behaving in a violent and assertive way to whch it might notionally have been entitled, but which was far from Christlike. People who are being reviled have a notional right to revile back, perhaps, but Jesus tells his followers to do the exact opposite. This being the case it is hard to represent an assertion of that right as something required of his followers by their religon. It damn well is not.
A few preliminary jottings are emerging for me about the ways christians are supposed to apply human rights law to ourselves…
Aidan O’Neill makes the common mistake of dividing us all up into EITHER Christian OR gay. I’m getting so fed up with people doing this. His examples are all of Christians who feel they should be entitled to keep separate from gay people, as if there is some kind of apartheid necessary. Well, I’m gay AND Christian, as are many of us. Where are the rights of people like me in all this? I think I should have the right not to be treated as appallingly as is currently the case by the religion into which I was born and… Read more »
“And, they would say, there can be no proper comparison between those who would discriminate on grounds of a religiously informed conscience, and those who so act simply from unthinking incoherent prejudice or bigotry.” And, they would be WRONG. [I was just reading about albino people in Africa being killed for their believed-to-heal *body parts*. I’m sure it would give them great comfort, that they’re being killed for this faith-healing belief, not “unthinking incoherent prejudice or bigotry” (Not!)] A “religiously informed conscience” . . . is Just Another Set of Beliefs (from just another human brain), like all the others.… Read more »
“The law should, instead, respect those who act on the basis of religiously informed conscience and make reasonable adjustments to accommodate them.” Nonsense It might be helpful to look at history here. Modern day Christians tell a story of how God defends the oppressed, but actually, if we look at the history of the civil right movements to counteract slavery, racial discrimination, and now gender discrimination, many Christians in those times opposed such changes, and used the scriptures to defend both slavery and black oppression. Some “religiously informed consciences” in those days were simply wrong, and late in catching up… Read more »
Let me get this straight: If I deny you housing, employment, public accommodations, a meal, etc., because you’re a MTF transgendered person, and I think you’re disgusting and pathetic, why that’s rank prejudice and is wrong. But! If I deny you housing, employment, public accommodations, a meal, etc., because you’re a MTF transgendered person, and I’m a devout fundamentalist Christian and you’re violating God’s fundamental plan for the permanence, inviolability, and complementary nature of the two sexes, them I’m just being morally guided by my superior beliefs. Riiight … Either way, I’m denying you goods or services based on a… Read more »
So should a member of a White supremacist church or the old Dutch Reformed Church of South Africa be allowed to discriminate against black people, on that basis? Should people be allowed to refuse goods and services to divorced people? Is anything allowed by calling on religiously informed consciences, or is it just gay and lesbian people who can be discriminated against?
Please do read the whole of Aidan’s article, not just the excerpted paragraphs. By choosing those paragraphs, I may have mislead some readers into supposing that they summarise his views. I do not think that is at all the case.
In particular I do not think he holds the view attributed to him by Fr Mark.
Note the final sentence: . . . But in most moral questions the authority to which we appeal is not that of the good and wise individual, but that of the moral sense of our civilization. We can very seldom give an adequate reason for those points on which we have the strongest moral convictions. For example, in argument I suppose we should most of us find it very difficult to produce a case for monogamy as against polygamy anything like so strong as the feeling which we have in favour of the one against the other. That feeling is… Read more »
Perhaps I’ve misunderstood O’Neill QC’s drift, Simon, and am open to correction. Reading the comments on his site, though, his other readers seem to have done the same.
There’s a basic fallacy in O’Neill’s thesis: That the prejudice is not “informed.” Few people I’ve ever met who manifest prejudice are raving lunatics, still less some kind of toothless, inbred hillbilly with nothing more than a willful defiance and a shotgun. They exercise their prejudicial discrimination out of what they believe to be an informed conscience; to such people, there is ample evidence that blacks *are* inferior/subhuman, Jews *are* inferior/subhuman (both long-cherished convictions based in religiously informed conscience). I’ve known of at least one atheist who mustered what he believed to be “scientific and rational evidence” to discriminate against… Read more »
Pardon, “conviction.”
A “convicition” is what Ranger Smith passes on Yogi for stealing picanic baskets.
Bad theology is bad theology. I recall complaining that much or Christian theology and sermons brought back memories of being personally raped or witnessing my mother being raped with threats to rape 10-year old sister and 12-year-old self unless she submitted. My “father” who did such things often touted out the sins of Eve to justify his behaviour. Solo scripturalist says there is nothing wrong with continuing to vilify Eve. By default they say there is nothing wrong by continuing to talk like a pedophile and rapist. They say “why should we give up our theology now? It has been… Read more »
Part of the issue with understanding is that this is a lawyer’s comment, and he is bringing to the table notions of competing rights and reasonable adjustments which are the legal (not theological) concepts which lawyers adopt in putting equalities and anti-discrimination legislation into practice. The implicit question is “which concepts should apply to the kind of cases we’re dealing with here?” That is a rather different question from whether the concepts are right or theologically grounded. There is a comment on his blog about why there is a problem with religion, since those with secular beliefs should be treated… Read more »
Mark
“The implicit question is “which concepts should apply to the kind of cases we’re dealing with here?”
How about we apply my blanket right not to be discriminated against?
I don’t see how you can single out one group of people who could legally be treated different depending on the religous beliefs of the people doing the treating.
Mark The article says that: First the criminal law does already look at motivation; no-one can be convicted of a criminal offence unless it can be established not only that the wrongful act was done (actus reus) but that it was done with the requisite criminal intent. That’s only partly true because while people who did not intend to kill are not convicted of murder they are still convicted of manslaughter. And then we still have to distinguish between the punishment (which may or may not apply) and the crime itself (which remains a crime). So if we apply the… Read more »
ah ! here we see the informed conscience of religion’ at work:
http://www.usccb.org/comm/archives/2011/11-060.shtml
These people are God’s friends, right ?
Erika You don’t have a blanket right not to be discriminated against in English law. Nor do people who assert a religious right against your position or against you have a blanket right to assert and act on their religious views. So there is a conflict. Aidan O’Neill is opening up a debate about the concepts which are used in English law to resolve such conflicts. He notes, for example, at the beginning of his piece: “Equality law, as currently interpreted, treats the six prohibited grounds of discrimination – age, disability, race, religion, sex (including transgender status) and sexual orientation… Read more »
“Generation after generation has come to
feel that certain relations of the sexes are, as a
matter of fact, the only ones that can be maintained with real wholesomeness”
Who sez? The real truth might be: ‘Heterosexuals’ of all generations etc…
Such an outright generalisation of what public opinion might deliver up on the basis of common experience is all too fallacious, and doesn’t bear even thinking about, let alone putting forward as a serious hypothesis.
Prejudice is just prejudice. Let’s not dignify it by trying to justify it.
‘You don’t have a blanket right not to be discriminated against in English law.’
Yes, we are still subjects. Subjected to this.
Hardly citizens.
‘I was not asserting a particular view on the matters of substance’
Someone needs to.
What Father Mark said.
Mark I understand that there is a conflict of rights and freedom. And I understand that there is no hierarchy. So the issue will have to be settled on a case by case basis. So far the law seems to have been interpreted that it’s ok to discriminate within your own religious sphere but not if you act in a public forum offering a public or publicly financed service. That makes instinctive sense to me. There are two other problems, one is Fr Mark’s point that the split between “Christian” and “gay” isn’t as clear as some people claim it… Read more »
Erika, I nearly always agree with your views, but there is a vulnerability in this logic: “adoptive parents must never be homophobic because you never know which child in their care turns out to be gay and the child’s right to actual protection from psychological harm (that is well documented) has to be greater than the parents’ right to their religious belief.” On that basis, child-bearing couples who happen to be homophobic should *also* be banned from having children, for the same reasons. If one doesn’t ban child-bearing homophobes from having children, how does one justify making a special case… Read more »
Susannah on a logical basis we already vet adoptive parents and we never vet potential natural parents. Becoming an approved adoptive parent is a long, complex process in which people are being asked searching questions about their relationship, their finances, their beliefs, their general social attitudes, their medical histories, whether they smoke etc. The process is guided by the conviction that the child’s interests are paramount, not those of the would be parents. There is no automatic right to become an adoptive parent. If you accept that the state has the duty to select the best possible adoptive parents for… Read more »
Erika, hmmm… “the logic is simple” I see the logic that if the state won’t interfere with parents’ right to have their own children, yet it can still do the best it can to select the best parents in adoptive cases. What I have a problem with is that if there is a moral urgency to protect children from adoptive parents who are homophobic, using that moral argument, and “putting the children first”, shouldn’t children we taken away from their parents if those parents are homophobic? Surely they’re every much as in harm’s way as the children in adoption? I… Read more »
Susannah we don’t automatically remove children from households with alcoholic parents and we certainly don’t police people’s bedrooms and make sure that alcoholics don’t have children in the first place. But social services do make sure, as far as they can, that children aren’t placed with alcoholic parents. Smoking doesn’t disqualify you from becoming pregnant or looking after your baby, but smoking means that Social Services don’t place babies or asthmatic children with you. If you told Social Services in a pre-adoption interview that you believed girls to be intrinsically inferior to boys and that you did not think they… Read more »
Susannah:
The state does not actively choose or approve the natural parents of children…it does actively choose and approve the foster and adoptive parents of children. As such, it has a much greater responsibility in the latter cases than in the former.
Thank you. I now feel clear about what Erika was saying. I think that once a child has been born into a household, even if that household is homophobic, removal from that household would involve to much holistic emotional damage to justify the removal on the ‘specific’ of homophobia. Whereas, if one can prevent that negative ‘specific’ of homophobia at the outset, at the point of selection of parents for adoption, then one gains the positive, without the collateral wider emotional damage involved if a child was removed from its home and parents. I ‘get’ the logic now. Thank you… Read more »