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.
Technorati: Civil Liberties, Religious Discrimination, Equality Act (Sexual Orientation) Regulations