Not Saussure

January 9, 2007

Gay rights vs religious rights: a real problem or a made-up one?

Filed under: civil liberties, Law, Religion — notsaussure @ 8:18 pm

The BBC reports that

New laws banning discrimination against gay people in the provision of goods and services face a Lords challenge

The Sexual Orientation Regulations [in fact,The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006] have been criticised by some religious groups who say people will not be allowed to act according to faith.

And there’s a vote in the Lords tonight on whether a ‘Humble Address should be presented to Her Majesty praying “that the regulations laid before the House be annulled”‘. A similar set of regulations is planned for the mainland later in the year, but hasn’t yet been finalised. Obviously part of the reason from the vote, apart from to Save Ulster from Sodomy (Ian Paisley’s slogan when trying, unsuccessfully, to resist the legalisation of male homosexual acts there in 1982) is to fire a shot across the bows of the Government when they introduce the regulations here.

Lord Mackay of Clashfern, the Conservative Lord Chancellor from 1987-1997, has a lengthy article in The Daily Telegraph defending the critics; the new regulations will, he fears,

over-ride his conscientious objections in the interest of promoting the freedom of those who wish to indulge in homosexual practices.

The authority of the individual’s conscience has been cherished in our nation for many generations. In Parliament, we have been accustomed to free votes when matters of conscience are involved. In the darkest days of two world wars, conscientious objections were upheld as a reason for exempting those who held them from fighting in the Armed Forces of the Crown.

Some of the objections, it has to be said, seem fantastical in the extreme, and Lord Mackay should know better. He explains his fears;

The regulations include, in addition to the discrimination provisions, provision against harassment. If person “A” subjects person “B” to harassment in any circumstances relevant for the purpose of these regulations where, on the grounds of sexual orientation, A engages in unwanted conduct, then that has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading or humiliating or offensive environment for B. What does this mean? The consultation paper had said the Government was minded not to deal with harassment in these regulations, as this could more appropriately be done later.

How does the harassment provision affect a teacher of religious education who believes he should teach that marriage, with the purpose of procreating children of the marriage, is a better way forward for our society than any other lifestyle? If a student happens to be of homosexual orientation, will his dignity be violated? If the teacher says that some religions (including the one of which he is an adherent) teach that homosexual practice is sinful, will he be breaching this provision?

I do believe that the provisions relating to harassment and to education need to be re-thought, in order that pupils in schools and other educational establishments may have the opportunity of knowing how major sections of the religious community view the practice of homosexuality. These provisions will also have a bearing on bookshops and printers. Will it be unlawful for a bookseller to stock books advocating marriage and deploring homosexual practices? A similar problem exists in relation to newspapers and magazines. Indeed, the possibility of effects on individuals pursuing their ordinary calling is very large.

Well, there’s a simple answer to this; it’s contained in the following clause in the NI Regulations:

(4) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) [violating dignity, creating a humiliating, hostile etc environment] or paragraph (1) [putting someone at a disadvantage] only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.

So, do we think that a judge is going to say that, ‘having regard to all the circumstances’, it ‘should reasonably be considered’ that someone refusing to sell books he doesn’t like is creating a humiliating or hostile environment? I doubt it, somehow. And if the teacher can’t find a way of teaching the views of a particular religion — whether he belongs to it or not — on anything without doing in such a way that ‘having regard to all the circumstances’ ‘it should reasonably be considered’ that he’s humiliating or creating a hostile environment for his pupils, then the short answer that the chap’s no business to be teaching in the first place and they should get in someone who can do the job properly.

Other, even more fatuous, propositions appeared on the BBC news website this morning, though they seemed to have vanished by this afternoon; these included the ideas that it would somehow be illegal for, for example, a printer who had great religious objections to homosexuality to print a leaflet advertising a Gay Pride march. It wouldn’t; what would be illegal would be turning down the job because the customer was gay and then accepting the identical job when the organisers sent round someone who was straight to place the order.

One might draw an analogy with the existing legislation forbidding discrimination in the provision of goods and services on religious grounds; as I understand it, there’s nothing in the new Equality Act to say that a shopkeeper is discriminating on religious grounds if he refuses to sell alcohol because his faith forbids it; what would be illegal would be selling be selling it Catholics but not Protestants.

No, a lot of the objections are fanciful, which is a normal hall-mark of a synthetic controversy — we don’t like the idea of being forbidden to discriminate so we’ll invent all sorts of ways in which this might (but won’t) inconvenience us so we can make more of a fuss. Some, however, aren’t so fanciful, so let’s have a look at those.

Certainly, a hotelier or B&B proprietor won’t be able to offer rooms to straight couples but not to gay ones. This seems to be particular cause for concern to some people since they apparently see it as being forced, in the words of Thomas Cordrey, a barrister with the Lawyers’ Christian Fellowship,

to actively condone and promote sexual practices which the Bible teaches are wrong. It is a fundamental matter of freedom of conscience.

Is it, though? Mr Cordrey, after all, is expected as a barrister — and I’m sure he does — to take clients’ not on the basis of what his conscience tells him, or whether or not he approves of his clients or what they seek to do, but on the basis that they’ve got an arguable case in English law. He might very well have profound religious objections to lap-dancing clubs — I’m sure he does — but if Spearmint Rhino want to instruct him to act for them then he’s not allowed to turn them down on those grounds. He presumably finds some way to square his faith with his professional responsibilities, and I don’t see why he thinks the owners of B&Bs should be unable similarly so to do.

His justification, it seems to me, will be a similar one to the one Lord Mackay must have found himself applying when he — as he must have done during his judicial career — found himself administering laws with which he disagreed or even ones which conflicted with his conscience; you’re not endorsing something when you allow, or even assist, someone to obtain something to which he’s legally entitled, nor when, as part of your duties and professional responsibilities, you enforce a law you don’t like.

Allowing your personal views to over-ride your legal responsibilities is sometimes necessary and praiseworthy, but it shouldn’t, to my mind, attract an automatic dispensation from the consequences. Certainly, it’s a good idea for law-makers to bear it mind that some people will have particularly strong ethical objections to certain things, and that religious objections are likely to be particularly deeply held. It’s very wise that, for example, the law respects the absolute secrecy of the Catholic confessional and doesn’t ask priests to break their vows of secrecy under circumstances when it would expect a lay person to repeat something he’d been told in confidence. But it’s wise, not because they’re religious obligations and therefore somehow privileged over secular ones, but because the courts would find themselves having to find large numbers of priests to be in contempt if they tried to force them to comply. The measure wouldn’t work, and any ill it sought to remedy would be greatly outweighed by the ill of trying to force so obnoxious a measure on people.

And here, I think, we have the distinction. I don’t know, but I’d be very surprised if many people forced not to discriminate against gays and lesbians found this, in practice, so obnoxious and so irksome an obligation that they were prepared to go to prison for failing to comply with a court order not to. I’d be surprised, in fact, if, when it came down to it, many thought that complying with the measure was so obnoxious and placed their immortal souls at so much risk that they decide to go into another line of business altogether, where they would not face such problems.

In reality, it’s doubtless a measure they’ll find irritating, but then so too, I’m sure, do the owners of some gay and lesbian establishments, who’ll find themselves forced to rethink their business plans and admit straight couples. I can see both objections, and, in general, I don’t like the idea of making people do things they don’t want to.

But since we’ve decided — quite rightly, in my view — that we won’t in general allow people to use their economic position to bully or otherwise make life difficult for others for being the wrong colour, or religion, or sexual orientation, which is what discrimination comes down to, exemptions to the general presumption that such discrimination is unlawful have to be workable. To be sure, no great harm would be done in the scheme of things if the owner of a particular B&B decided he wanted to run a gay-only or straight-only establishment.

Indeed, I see the attractions of such an arrangement, both on the grounds it lets the proprietor run his business as he chooses — usually a good thing — and that it increases the range of choice available to the customer. But in achieving this, you have to make sure you don’t undermine the whole basis of the general presumption, and you also have to argue it on practical and pragmatic grounds, based on the idea of freedom of choice and freedom for people to do things you yourself might not particularly like, not on some spurious grounds that religious objections are allowed automatically to trump everything else.

What we need, in other words, is for the people protesting outside the Lords this evening to sit down with the owners of gay, lesbian and bi- establishments who want to keep their businesses similarly exclusive, and see if they can’t work out a mutually acceptable set of proposals to put to government. A fly on the wall might find that an entertaining meeting, but I’m quite serious about it. Politics comes from the Greek polis, πόλις, a city, and derives Aristotle’s observation that just as some animals live alone and some live in herds or packs, Anthropos politikon zoon, man is an animal that lives in cities, or states, and politics is the study of how we manage to do this, thus obtaining the various advantages of living in complex societies, without being at each other’s throats; that generally means compromise when you can manage it.

If you can’t, you can’t, and some people end up unhappy, but such is life. And to say, ‘Oh, we don’t need to compromise, because it’s our right not to’, whether you claim that right for religious or any other grounds, ain’t going to work. I understand, I think, how these protesters feel, or at least claim to feel, though I profoundly disagree with what they’re trying to do; I, too, got lines I won’t cross, some of which I won’t cross for religious reasons. However, while I’ll certainly argue for my position, and make it clear that I’m not shifting and I’m prepared to take the consequences (if, in fact, I am), I don’t expect my religious objections to command any special privilege over and above my, or anyone else’s, general ethical and political views.

[UPDATE] Via the comments below, a couple of very good posts on this from ZeFrog

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  1. Another fantastic piece of writing, intelligent and reasoned. Thank you. I wanted to let you know I’ve left Blogpower but am adding you to my blogroll under the ‘opinions’ category.

    BNP furore aside, the Blogpower initiative meant I was able to find bloggers whose work I appreciate who I may otherwise never have come across. x

    Comment by Andy — January 10, 2007 @ 9:10 am

  2. Acutally I find htis a difficult one. I do think that most of the Christian reaction is over-hype and legalese.

    They seek to take extreme cases and make them sound as if they will occur every day; it is just filibustering.

    On the other hand, I don’t understand the need to ‘promote’ gay rights so much. Where is the demand for this? Even many gay people are a bit lost on this. Also this in general is a push to always give minorities rights at the expense of the majority – overall something I disagree with, there is no need for laws on everything.

    Comment by cityunslicker — January 10, 2007 @ 12:09 pm

  3. …Acutally I find htis a difficult one. I do think that most of the Christian reaction is over-hype and legalese…

    Love Cityunslicker’s spelling but agree with his sentiments here.

    It is difficult for a Christian becasue it is clearly stated the nature of relations should be man and woman in marriage. It’s in black and white so what does a Christian do, given that the guy who said this was supposedly part of our Maker? Can he be a fair weather Christian?

    On the other hand, I’m sure being gay is not something they can help. It just happens. So what happens with them? I seriously don’t know the answer.

    Comment by james higham — January 10, 2007 @ 1:50 pm

  4. It is sensible to consider the extreme cases before passing legislation. Extreme things happen, and sometime become ‘normal’. That of itself is not over-hype.

    Christian belief has been outlawed before. Some Christians will continue to believe according to their own concience, and some will be prosecuted for it.

    I oppose this legislation because it inforces the current moral fashion. It is bossy legislation telling people that what the majority believe is the only correct morality.

    Comment by OnyxStone — January 10, 2007 @ 2:50 pm

  5. CityUnsliker, I don’t see why a measure to ban discrimination should be seen as a measure to promote anyone’s right’s in particular; other, of course, than those of people who feel they’re being discriminated against and want the courts, if the courts agree that the discrimination is taking place, to put a stop to it.

    James, I genuinely don’t see what the problem is for a Christian; according to the tenets of which branch of Christianity does a hotel-keeper put his immortal soul at risk by obeying the law of the land and renting out his rooms to gay couples? Whatever he thinks God makes of the relationship, that’s hardly his problem. I believe, or think I do most of the time, that one day we must all of us face a far greater and more merciful judge than any of us deserve, and I just cannot understand how anyone thinks He’s going to be particularly bothered about who the hotelier’s been letting out rooms to. If that’s genuinely the greatest of the hotel-keeper’s worries, he’s a fortunate and virtuous man indeed.

    As to Onyx Stone’s points, I fear I don’t really understand them. Doubtless it is seensible to consider extreme cases before passing legislation, which is probably why the legislators put in qualifications about ‘having regard to all the circumstances’ and ‘it should reasonably be considered’.

    Judges, who spend their time dealing with real people in real situations — unlike many politicians and commentators, who tend to concentrate on what hypothetical (and totally unreasonable) people might do in hypothetical situations so as to prove a point — do normally take phrases like that as an invitation to use a bit of common sense.

    Quite what Christian belief being ‘outlawed’ has to do with anything, I don’t see, since no one is suggesting doing any such thing.

    And the law isn’t saying anything about what’s moral and what isn’t; it’s talking about the terms on which goods and services may be offered. Seems to me the antithesis of moral bossyness, in that it’s saying you can’t arbitrarily refuse goods or services to someone because he doesn’t happen to share your particular view of moral behaviour.

    Comment by Not Saussure — January 10, 2007 @ 9:33 pm

  6. It is important to remember that those very vocal people are only a tiny minority. I was at the (counter) demo on Tuesday and there only about 2000 of them (and that is a generous estimate). Having talked with some of them it appear clear very quickly that they weren’t there to support the annulment of the regulations (they didn’t seem to have much of a clue about it) but to voice other concerns.

    It is also important to remember that there is a doctrinal exemption in the regulation.

    In any case, I am afraid there will be a whole new outburst nearer April when similar regulations are extended to the rest of the country.

    Comment by zefrog — January 11, 2007 @ 11:40 am

  7. Presumably, a hotelier would still be able to restrict his offering of rooms to married couples and not unmarried ones?

    Given that all religions I’m aware of are just as opposed to fornication and adultery as they are to homosexual acts, this would seem to remove any moral problems. Well, at least until civil partnerships are made equal in law with marriages…

    Comment by john b — January 11, 2007 @ 12:31 pm

  8. Or couldn’t they try using the ‘no same-sex parties’ rule, as practiced by many camp sites (no puns intended)?

    Comment by Neil — January 11, 2007 @ 12:45 pm

  9. ‘No same-sex parties’ would, I think, be out on the grounds of sexual discrimination. Do they really have such rules at ‘many camp sites’? Must cause problems for the Scouts and Guides; and, way back when I was a teenager I used to go on camping holidays with friends from school. The hope was that we’d meet girls and end up in their tents, but we didn’t always score.

    I genuinely don’t see why the measure is a problem, or, rather, I don’t see any principled reason why it should be. If you run a hotel, you’ll almost certainly find yourself accommodating guests, from time to time, who you wouldn’t, for whatever reason, want as overnight guests your own home. If you find this a problem, then you’re in the wrong line of business.

    Comment by notsaussure — January 11, 2007 @ 2:02 pm

  10. Thanks for the update with links and the good words :O)

    (although you have used the same URL twice but I am not complaining, promise!)

    Comment by zefrog — January 11, 2007 @ 2:48 pm

  11. Merde! Now fixed.

    Comment by notsaussure — January 11, 2007 @ 3:29 pm

  12. No, it’s true. Google for:

    “no single sex groups” campsite

    Hundreds of ’em. I think it’s mostly to keep the rowdy stag dos away, and keep the site ‘family friendly’ – which means gangs of kids roaming around getting drunk on Woodpecker…

    Comment by Neil — January 11, 2007 @ 3:58 pm

  13. My mistake, though I wouldn’t say it was hundreds of them. I very much doubt it can be legal, any more than is the practice you sometimes see clubs advertising of offering half-price drinks for women; it’s a good example, though, of how the fact that something’s open to legal challenge doesn’t necessarily mean it will be challenged (though I think this single-sex group had a justified complaint against the campsite)

    Comment by notsaussure — January 11, 2007 @ 7:19 pm

  14. The same sex rule at campsites is legal, why wouldn’t it be? Most businesses are allowed to set there own rules, such as dress codes in night clubs. Now had the campsite made an exception for the group in the last post it would have been common sense you’d think, but once rules are applied differently to different people that’s when it can become discriminatory. Irish christians should have every right to choose who can share a bed in their guest house, but not because they are religious, any guest house owner should have the same rights. You wouldn’t force them to accept 3 people who wanted to share a bed, a 50 year old man and a 16 year old girl, I doubt they’d have passed a law if they had been stopping straight unmarried couples. Why is it only certain vocal special interest minority groups who get special rights?

    Comment by Ranter — January 16, 2007 @ 8:28 pm

  15. I don’t think it is legal, Ranter. If the campsite is prepared to accept a booking from group A, four friends who comprise two men and two women (or, I take it, three men and one woman) and refused a booking for group B because it comprises four women, I’d say group B was being discriminated against on the grounds of gender. Wouldn’t you?

    I don’t quite follow your point about forcing guest house owners to accept three people who wanted to share a bed. No one’s suggesting that; what they are saying is that if the guest house owner does permit three-in-a-bed sex romps (as advertised in The News of the World) he can’t be fussy about the sexuality of the participants. Ditto with the 50 year old man and the 16 year old girl — he can turn them down if he wants to; it’s just if he does let them share a bed, he can’t get on his high horse if a 50 year old man turns up with a 16 year old boy.

    I don’t understand at all this business about ‘special rights’. How does a law that says everyone has to be treated the same give anyone special rights? Rather the opposite, I think.

    Comment by notsaussure — January 16, 2007 @ 8:47 pm

  16. Hi! Why I can’t fill my info in profile? Can somebody help me?
    My login is Kisakookoo!

    Comment by Kisakookoo — January 24, 2007 @ 6:12 am

  17. “And the law isn’t saying anything about what’s moral and what isn’t; it’s talking about the terms on which goods and services may be offered. Seems to me the antithesis of moral bossyness, in that it’s saying you can’t arbitrarily refuse goods or services to someone because he doesn’t happen to share your particular view of moral behaviour”

    But by forcing someone to provide goods or services to someone he doesn’t want to provide them for *is* moral bossyness.
    Does anyone argue that ethical banking is discriminatory because they refuse to invest in certain schemes that they morally disagree with? No. Of course if someone is refused a bank account on account of their political beliefs (i.e. membership of certain parties) then that person has no protection in law. Perhaps BNP members refused bank accounts could claim that they are gay and that a certain high street bank should be forced to provide one on account of that!

    Comment by DT — January 26, 2007 @ 3:49 am

  18. I don’t see how either of the examples are germaine to the issue, I fear, DT.

    Since there’s no law saying that people have to invest in ethical funds or that fund managers have to invest in ethical companies, I don’t see what that’ got to do with laws being ‘bossy’ or not. Nor do I see how a bank putting together a particular financial product can be said to be discriminatory; that’s like saying a property fund discriminates against investments that aren’t in property.

    Has anyone actually been turned down for a bank account on the grounds he’s a member of the BNP? News to me.

    I know the BNP as an organisation had their accounts closed by one bank and that the party claimed this was because the bank didn’t like their politics. I can think, though, of several other reasons for closing down an organisation’s accounts, some of which are rather less flattering to the organisation that that ‘the bank were persecuting us for our political beliefs’.

    Comment by notsaussure — January 26, 2007 @ 2:22 pm

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