Friday, 2 March 2007

equality law: two developments

First, Andrew McClintock lost his Employment Tribunal case.

Sheffield Star Gay adoption row magistrate ‘was wrong’
BBC Magistrate in gay adoption defeat

Second, the Joint Committee on Human Rights of the UK Parliament published a report: Legislative Scrutiny: Sexual Orientation Regulations which is available on the web starting here. A PDF version of the document is here.

From the committee’s press release:

Regulations under Part 3 of the Equality Act prohibiting discrimination and harassment on grounds of sexual orientation are expected to be made soon for Great Britain. In light of the consultation held last year by the Government on these regulations, and the equivalent Northern Ireland Regulations which have already come into effect, the Committee in this “post-legislative scrutiny” Report sets out the human rights issues likely to arise in relation to the Great Britain regulations.

The report’s own Summary is here.

The Lawyers Christian Fellowship is upset over both these developments. Anglican Mainstream has their material, here, and here.

The Evangelical Alliance is also upset about Mr McClintock.

Posted by Simon Sarmiento on Friday, 2 March 2007 at 9:02pm GMT | TrackBack
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Comments

Very good news all round.

Freedom of conscience cannot mean the freedom to discriminate in the public sphere.

This shows even more just how hopelessly out of touch the church is, and why it will be shunned if it does not change other than by those who seek a bolthole away from progressive change.

Posted by: Merseymike on Friday, 2 March 2007 at 10:28pm GMT

Are all of these groups protesting the changes in the law affiliated with the CofE and the RCC or are other denominations involved?

Posted by: Richard Lyon on Friday, 2 March 2007 at 10:51pm GMT

What the EA supported was "the need for the law to make reasonable accommodation in cases involving matters of religious conscience".

The JCHR seem to take a common UK view - that when 'rights' conflict you have to decide which is the most important and it should then completely prevail - rather than finding a proportionate balance to keep everyone in the public arena.

That effectively gives the government the right to negate 'rights' and exclude groups from the public arena.. which is, I think, heading towards totalitarianism rather than open liberal democracy (with a small "L").

For instance an extremist Muslim government could use the same logic to negate sexuality rights - by deciding that religious rights are in their judgement more important than sexuality rights, and wherever they conflict the religious rights must totally prevail.

Do unto others as you would have them do unto you!

Posted by: Dave on Friday, 2 March 2007 at 11:19pm GMT

Dear Merseymike, I'm happy that people, when acting as representatives of the state in the government sphere (such as magistrates), should accept that their consciencious exceptions are fewer than those allowed to the general public. As representives of the state they should be expected to work according to the precepts set down by Parliament. But I don't think that it is reasonable or "open liberal democratic" that they be allowed no consciencious exceptions!

ps I don't call a lot of recent societal change 'progress'... given the spiralling crime, violence, relationship breakdown, mental illness, STDs, teenage pregnancy etc I'd call it "decay"

Posted by: Dave on Friday, 2 March 2007 at 11:36pm GMT

Tricky.

I actually share Dave's concerns on this one, for the same reasons.

There is an honesty from a magistrate who asks to not be put into a conflict of interest.

The question of forcing him to do this relates to what happens if every single magistrate chose not to deal with gay couple adoptions. Maybe the flying bishop model pioneered by the Anglican communion is a useful model for government agencies? If the local magistrate wants to boycott helping gays, then have a roving magistrate come in to deal with cases that are being boycotted.

The other issue is to do with the urgency of the service required. For example, if you an ambulance officer who does not wish to assist an identified gay or transexual, then this could be a matter of life and death, and there is no time to call in the roving substitute.

The other issue is to do with the reasonableness of the principle. So for example, if you despise divorce do you refuse to give women who are being abused by their husbands a divorce because it conflicts with your conscience? We know of church leaders who enable abusive relationships by brain washing the victim into thinking that it is their fault because they haven't prayed hard enough or with genuine intent or haven't behaved well enough and therefore provoked whatever abuse is thrown their way.

There is no easy or clear cut solution.

Posted by: Cheryl Clough on Saturday, 3 March 2007 at 2:04am GMT

I think that some notions such as vulnerability and salience come into play , in these contested attempts to balance the various rights; and the various competing claims for legitimation.

VULNERABILITY

If we compare the position of a judge hearing 'an adoption case', with that of a couple offering themselves for consideration as potential adoptive parents, it is clear who is vulnerable (and who is not. A judge is simply doing his job within his legal and professional framework. A couple, of course, are putting themselves on the line. There are intense feelings, and they are to vulnerable to being turned down (of necessity).

To my mind, there is no comparison. A judge, or indeed, any other professional or service provider, is there to serve those who come before them with a need. Having a need and seeking to have it met makes us vulnerable even if we are only buying a three piece suite, or the help of a plumber. The professional or service provider serves the individuals who approach her, by serving the values of that profession, and using their skills and understanding. These protect the professional's humanity and individual vulnerabilities to a considerable extent. Those approaching them are at potential existential risk, to a greater or lesser extent. (Seeking to Adopt a child is more personally risky than seeking to purchase furniture.)

SALIENCE

The professional or any worker is their to serve their clients within the framework of law; professional practice, skill and expertise.

The workers' needs cannot take precedence over their role / task; or the needs of the client.

Workers need to address any needs or issues that threaten to impinge upon their roles and tasks, through management supervision, personal reflective supervision, , consultation or further training. In situations where these strategies fail to help / work, the worker may need to be redeployed, re-trained or end their employment.

In the case of this judge, he refused to continue to do this job, in the changed circumstances, as was his right. He was not dismissed. He made a choice to resign. This is the very thing he would deny to others (same gender adoptive couples, in this instance).

Posted by: Laurence Roberts on Saturday, 3 March 2007 at 3:08am GMT

Do unto others as you would have them do unto you!

Posted by: Dave on Friday, 2 March 2007 at 11:19pm GMT

What prevents you, do you reckon ?

Posted by: Laurence Roberts on Saturday, 3 March 2007 at 3:10am GMT

The two cases are really interesting.

In the one we find that magistrates are supposed to follow the law .......

In the other we find an analysis of the interaction between religion and other rights (the so-called conflict of rights).

We find from the Joint Committee that there is an unlimited freedom of religion but that manifestation of religious belief can be curtailed in the interests of the rights of others. When you think about it this is the merest common sense and couldn't really be otherwise - you can't make a bridge from the freedom to exercise a religion to freedom to remove someone else's rights on the basis that your religion says you have to do it.

This will of course also be tested in the High Court on Belfast.

The Joint Committee also is interesting because it makes an argument that in several respects the SO regs are actually required under human rights law, which is an interesting argument that I had not really considered.

I do disagree with the Jt Committee on one area, which is that they feel that the definition of harassment needs to be narrower. So far as I understand there is only one legal definition of harassment albeit that the bar is already quite high and that the expression of opinions per se (religious or otherwise) is protected under the ECHR. Notably the JCHR hasn't provided an exemplar of a 'narrower definition of harassment' and I doubt it can correctly be done.

Posted by: Craig Nelson on Saturday, 3 March 2007 at 8:38am GMT

But I do not wish to discriminate against evangelical Christians. I may think they are utterly deluded and follow a harmful religion, but that does not mean I think I should be allowed to discriminate against them in terms of the provision of goods and services.

Under the cloak of 'conscience', that is exactly what these people wish to do - see their wish to discriminate acceptable in law.

Its not - and if their 'conscience' gets in the way of them providing a fair and unbiased service, then the best thing all round is for them to resign.

Posted by: Merseymike on Saturday, 3 March 2007 at 9:43am GMT

Now, what the Parliamentary Committee says is that both are perfectly equal and symmetrical in scope, and that the one is not to infringe upon the other.

Which, as I have explained several times over, is the Condition d’Ordre Public of the Treaty of Westphalia.

Of course, the trouble for Anglican Mainstream is that they think that their own peculiar “lifestyle” should have the right to “override” all others.

The case of the magistrate (= judge) being able to exclude himself from certain cases depends on the actual procedures of government in the State, or whatever, in question.

Personally, I think he should be able to exclude himself from certain (predetermined) cases or be so excluded.

The procedures of government, however, have nothing to do with 20th century democracy, but are rather fore-runners of democracy when under the principle of the rule of law.

They are developed out of the procedures of the Byzantine Empire, if not the Roman one, applied locally through at least a Millennium (the 2nd).

Posted by: Göran Koch-Swahne on Saturday, 3 March 2007 at 11:37am GMT

Please prove me wrong - but

I have a suspicion that people sidestep the following question:

In what sense does spiralling crime, family breakdown, increasing divorce and abortion constitute progress.

Failure to prove me wrong will be in danger of being construed as inability.... ;o)

Posted by: Christopher Shell on Saturday, 3 March 2007 at 1:43pm GMT

I would say that 'spiralling crime, family breakdown, increasing divorce and abortion' are all symptoms of cultures that have been based on dysfunctional, inconsistant, impossible, corrupt ethical frameworks. The gradual passing of these dysfunctional systems will inevitably result in dysfunction.

Lets hope we can do better next time.

Posted by: matthew hunt on Saturday, 3 March 2007 at 4:01pm GMT

Dear Dr Shell;

...in the same way that increased environmental awareness, fairtrade, female emancipation, abolition of the death penalty etc constitute dystopia :-)

Posted by: mynestepreost (=David Rowett) on Saturday, 3 March 2007 at 5:46pm GMT

My dear Christopher Shell:

You are suffering from a brain bug. I will give you a prescription for it:

**************************************

Correlation does not imply causation.

**************************************

Repeat that statement 50 times before breakfast for the remainder of Lent (100 times on Wednesdays and Fridays).

If my prescription does not do the trick, visit the following website:

http://www.venganza.org/about/open-letter/

and study the statistically significant inverse relationship between average global temperature and pirates.

Posted by: Charlotte on Saturday, 3 March 2007 at 6:07pm GMT

Some of those spiralling crime figures are to do with crimes being reported that were not before (for example, a wife could not report being raped by her husband in Australia only a few decades ago because the law said there was no such thing as rape).

An escalation of AVO (anti violence orders) does not necessarily reflect an increase in violence, it can reflect that victims are now finding they work to stop violence. (When I was a child, half of women who were threatened with murder if they left their husbands were actually murdered).

In that sense, crime has gone down, women are now leaving their husbands and not being murdered.

The other comment is that rogue states who gloat that they spend 41% of the world's total military budget gloss over that they have funded that by cutting back on social welfare, education, health and infrastructure for their own citizens. People who do not have enough food or live in fear of where they are going to live or face violence every day are closer to letting go of the "trigger" on irrational emotions.

As Charlotte wrote "Correlation does not imply causation."

After all, if we only want to look at correlation: we could argue that the rapid growth of conservative evangelical christianity matches the deterioration in society, so maybe evangelical christians are to blame.

Posted by: Cheryl Clough on Saturday, 3 March 2007 at 8:51pm GMT

Fasinating Charlotte. Highly recommended !

Posted by: Laurence Roberts on Saturday, 3 March 2007 at 9:08pm GMT

My problem with this judge's tender conscience is his comment that he might be saving a child from the "hazard" of a birth family so dysfunctional the child needs to be put up for adoption and then "exposing" them to another "hazard" by placing them with a gay couple. Given the great difficulty in most cases of extracting children safely and quickly enough from grossly unsuitable situations I can see possible adoptive parents not being too impressed with their care being equated with "hazards" like violence, sexual abuse, emotional abuse, drugtaking, neglect just because they are of the same gender.

Posted by: Sarah on Saturday, 3 March 2007 at 9:31pm GMT

The burdens of proof fall upon the dissenting judge in this case, since presumably the couple who are potential adoptive parents have already been solidly and exhaustively screened and investigated, just as much as heterosexual adoptive parents would be.

The judge wishes to add one more screening to this large and imporant list: Are you folks straight? Yes, pass go and adopt. No, no not pass go and do not adopt.

Pretty simply, it looks. But is the judge actually right, factually, or morally?

Posted by: drdanfee on Sunday, 4 March 2007 at 2:06am GMT

Judges should only recuse themselves if they are unable to ensure impartiality and the appearance of impartiality in a given case. For example a judge who is a member of the Lawyers Christian Fellowship can't hear a case which LCF brings or where LCF has a strong public position.

If however a judge is saying they can never apply the law when a member of a significant minority is involved in a case because of a deep seated prejudice in the case then the judge is making an open advertisement that he is not capable of being an impartial judge and would be a danger to the judiciary in any case he heard.

He wants to be able to apply the laws that he carries around in his own head (or maybe in his Bible). That's a theocrat not a judge. Judges are there to apply (not make) the law to the best of their endeavours. If they are faulty in law they can be reversed by a higher court.

Posted by: Craig Nelson on Sunday, 4 March 2007 at 4:36pm GMT

Dear Laurence Roberts and All,

I don't expect, or want, to oblige other people to live according to what I believe to be true and virtuous, though I do want to persuade and pray that people come to believe and live as I [try to] do.

I certainly don't expect that I or any other member of the general public should be obliged to behave (or not behave) in ways that are against their religion - unless *actual* harm could result and the restriction is proportionate. Public Officials, on the other hand, represent the state in their roles. While performing their duties they should expect to be required to act in accordance with the precepts set down by Parliament. But if you want an open liberal democratic society, that involves as many groups as possible in the government sphere, then there will have to be some exceptions in specific areas of contention.

I am quite happy, for instance, if an atheist judge asks not to sit on blasphemy cases, or a pacifist judge asks not to sit on military cases, or a Buddhist judge asks not to sit on cases that might involve the death sentence. But maybe you aren't? Or maybe you think that it is just on homosexual issues - that no accommodation should be offered to anyone who disagrees with gay adoption (or gay marriage, or gay sex) - other than to completely exclude themselves ? Is Gay Sex the only absolute behavioural Human Right ?

The magistrate was not asking that gay adoption cases be stopped, but that another magistrate hear them. That seems proportionate to me. It certainly isn't causing actual harm to anyone; noone would even know! The "no compromise possible [on my pet right]" approach will make many groups feel alienated from society, who might otherwise have been easily accommodated, and contributed positively in most areas. Pushing Christians around is a fairly risk free activity (until God decides to judge the world) but alienating other groups could be storing up more societal unrest.

Posted by: Dave on Sunday, 4 March 2007 at 10:42pm GMT

Its really quite simple, Dave.

In the public sphere, you cannot legally discriminate against gay and lesbian people.

And no, there should be no clauses that allow such prejudice to be enacted. None of your given examples involve such discrimination against individuals.

You are entitled to believe as you wish. There are exemptions for the internal workings of your churches. But thats as far as it should go.

Posted by: Merseymike on Monday, 5 March 2007 at 9:35am GMT

Hi Charlotte

Re: correlation and causation.

I have posted on this several times before, but to repeat the main points:

(1) Practically all causations are also correlations.

(2) The semantic content of the word 'correlation' overlaps considerably with that of 'causation'. For example: 'where you find one, you tend to find the other'.

(3) Correlations are never mere coincidence. Where there is not a direct line of causation, there is going to be some other line, e.g. a common source which is related to both elements. This applies even in cases like 'ice-cream causes rape' where in fact the common source is hot weather that provides circumstances more than averagely congenial (horrid word!) to both.

(4) Causation is in any case not linear: a causes b causes c. There are causative (and simultaneously correlative) networks or webs, e.g. webs of the circumstances engendered by capitalism, or by Christianity, or by humanism etc..

(5) This is why in cases of causation I advocate seeing what kind of correlation there is between certain overall belief-systems / social systems and certain outcomes. Otherwise we are dealing not with large-scale causes but merely with small-scale symptoms which point to the large-scale causes.

In the present case the large-scale cause is the unargued 1960s hedonistic philosophy.

Posted by: Christopher Shell on Monday, 5 March 2007 at 12:01pm GMT

I hope that Dave posted before having chance to read Craig Nelson's contribution, as it answers all points with even handedness and a clear understanding of the role and functions of the judiciary.

Posted by: Anglicanus on Monday, 5 March 2007 at 1:09pm GMT

Chris, your comments make sense up to your last point, which is not an argument but an unsubstantiated belief statement. Where are (for example) 'Thatcher's/Reagan's children' your the 1960's paradigm? It's also a gross oversimplification to see the 1960's as 'hedonistic philosophy': unless one acknowledges other developments which are just as much 60's phenomena - the abolition of the death penalty, the beginnings of an anti-war movement beyond traditional pacifist circles, the beginnings of environmental awareness, the decline in the acceptability of racism to name a few - then one is turning into a 'grumpy old man' harrumphing at these long-haired layabouts, while often silently taking advantake of the unaknowledged benefits which trace their roots back to the same culture.

Some stupid things were done in the 60's — but would we really want to go and live back in the genuine '50's of 'no blacks' and the rope?

Posted by: Mynsterpreost (=David Rowett) on Monday, 5 March 2007 at 5:01pm GMT

"Practically all causations are also correlations."

All causations do have correlations, sometimes masked by extraneous factors that affect the manifestation.

But not all correlations infer causation. The primary school example being the premise that poverty caused english people to catch tuberculosis. Actually, it was living near the railway tracks where the ash from the coal-fed steam trains got into their lungs.

Similarly, gout only became identified as a diet related illness during the world wars when people no longer had easy access to red wine and rich foods. Their gout cleared up and came back when things were bountiful again. A family can be condemned as being fatally flawed, when it turns out it was a lifestyle pattern rather than genetics that caused the repeating pattern.

A lot of people like to simplify the world as it makes it easier to cope and find solutions. We also like to find the best solution. But as we are finding out, nature and God do not need us to choose the "best" solution, and in fact we are learning that multiple solutions often create more resilient and sustainable systems.

That was a theme that came up a number of times on a pioneering show called "coolaid" aired in Australia for the first time last Sunday http://www.ten.com.au/coolaid

Posted by: Cheryl Clough on Monday, 5 March 2007 at 9:36pm GMT

In any case, recognition of gay and lesbian relationships is rather the opposite to hedonism - its actually very conservative, recognising the value of marriage as a model to be extended, via civil partnership, to same sex couples.

Posted by: Merseymike on Monday, 5 March 2007 at 10:09pm GMT

Merseymike wrote. "Its really quite simple, Dave. In the public sphere, you cannot legally discriminate against gay and lesbian people."

Dear Merseymike, I think that the correct legal phrase would be "discriminate against someone on the on grounds of their sexual orientation" (of which homosexual is just one variant!). I do not want to do that - just like you would not want to discriminate against someone on grounds of their religion. I have an obligation to love everyone - even people who treat me as their 'enemy'. However, I do not want to be obliged to speak and behave (or not behave) as if I approved of sexual behaviours that are sinful, immoral or harmful - just like you would not want to be obliged to speak or act as if you approved of my religious convictions and behaviours which you consider wrong, wicked or harmful.

Posted by: Dave on Monday, 5 March 2007 at 11:27pm GMT

RE Dave's new version of the Evil Extreme Muslim (Al Who?) canard: "For instance an extremist Muslim government could use the same logic to negate sexuality rights - by deciding that religious rights are in their judgement more important than sexuality rights, and wherever they conflict the religious rights must totally prevail."

Now dear Dave, again,

What precisely was it the Lawyers Christian Fellowship, the Evangelical Alliance and Anglican Mainstream wanted the State to do?

Let me think ... the above?

Posted by: Göran Koch-Swahne on Tuesday, 6 March 2007 at 11:53am GMT

So I propose a trade:
We in the US will take your conscientious objectors to your government's new policy (their faith would be respected here) and you can have those who disagree with our laws (those of most states and the federal government) that refuse to recognize same sex marriages and/or civil unions.

Posted by: DaveG on Tuesday, 6 March 2007 at 4:28pm GMT

Dear Göran, the key phrase was "totally prevail" - I want a bit more 'live and let live' - rather than the UK government's approach to date - which seems to have no sense of proportionality. They are arguing that, because one human rights status (sexuality) is in their opinion more fundamental than another status (religion) [because sexuality is a more inbuilt aspect of human beings than religion], then whenever there is a conflict in the public square (which in real life as actually rather rare) then one must "win" 100% and the other "loose". This approach is obviously going to alienate the groups that are told that their Right amounts to nothing.

A better approach, which I thought was fundamental to Human Rights law, is that
- no Right is absolute
- no Right should be interpreted in such a way as to remove another Right, and
- unavoidable conflicts between Rights should be resolved proportionately.

Posted by: Dave on Tuesday, 6 March 2007 at 8:01pm GMT

DaveG wrote: "We in the US will take your conscientious objectors to your government's new policy (their faith would be respected here)...."

Dear DaveG, I wonder whether it might not come to something like that.... wouldn't be the first time of course!!!

Posted by: Dave on Tuesday, 6 March 2007 at 10:22pm GMT

No, Dave. The bottom line is that people like you do not have the right to discriminate against me because of your religion. You have the right to holds and practice that religion, and not be discriminated against because of it. But that doesn't give you the right to discriminate against others. Get used to it.

Posted by: Merseymike on Wednesday, 7 March 2007 at 12:25am GMT

Hi Cheryl-

You wrote: 'not all correlations infer causation'. Trying to grasp your point - I assume you mean 'imply' not 'infer'.

If that is what you mean, that is precisely the point I was replying to in the first place. Not that anyone believes that all correlations imply causation anyway. But my 5 points (none of which remotely suggested that all correlations imply causation) were designed to show that the relationship between causation and correlation is none the less close.

Hope this is clear.

Posted by: CHristopher Shell on Wednesday, 7 March 2007 at 9:15am GMT

Hi David Rowett

There are not just two options open to us, the 1950s and the 1960s. There are thousands of options, and our job is to choose the best/truest available worldview that will bring about the best possible society.

Posted by: CHristopher Shell on Wednesday, 7 March 2007 at 9:18am GMT

Christopher Shell wrote
There are not just two options open to us, the 1950s and the 1960s. There are thousands of options, and our job is to choose the best/truest available worldview that will bring about the best possible society.

Exactly. So the demonisation or raising to heroic status of any decade is inadvisable, including the much-maligned 60's. Augustinianism rules!

Posted by: Mynsterpreost (=David Rowett) on Wednesday, 7 March 2007 at 6:35pm GMT

Dear Merseymike, I can't think of a circumstance where I would want to discriminate against someone just because of sexual orientation as such. I am under an obligation from Christ to love everybody!! Christ also made plain that not everything we do (or want to do) is right and good - which lead Him to die for those sins..

If the SORegs (now published) provide protection for people from previous unfair discrimination, and don't unreasonably limit me manifesting my moral beliefs and religion, I am all for them.

Posted by: Dave on Wednesday, 7 March 2007 at 9:12pm GMT

Dave,
Christ didn't want you to be "under obligation to love", he wanted you to actually "love"!
Whether we understand him in precise detail or get him wrong at times (all of us!), that remains.

Try actually loving people like Merseymike and myself for a minute. Loving, as in "liking" (James Alison).
Scary, I know....
But we are to comfort the disturbed and disturb the comfortable!

Posted by: Erika Baker on Wednesday, 7 March 2007 at 10:49pm GMT

Dear Erika, Love *is* actual love, there isn't another form!

What I mean by 'obligation to love' is that even if you don't feel love for someone, even if they treat you as their enemy, you must still choose to love them.. Not always easy in real life - someone once said something like: "I love the whole human race! It's just that I can't stand some of the people I actually know."

Or are you confusing loving people with uncritically loving their actions and desires? That is not a Christian concept, and I doubt that anyone actually does it!

Posted by: Dave on Thursday, 8 March 2007 at 12:11am GMT

Hi David R

To demonise the 1960s in toto and to point out that a certain form of preferred worldview and/or legislation happened to become widespread at that time are two different things. I am doing teh second not the first.

I also agree that the 1980s philosophy was equally selfish albeit in a different way. The fact that people so often go for just one or the other explanation of where things have gone wrong shows how many of us fall for the temptation to be ideologues, whether right or left wing.

Posted by: Christopher Shell on Thursday, 8 March 2007 at 12:31pm GMT

Dave,
I never said it was easy! But it's what Jesus did and what we're meant to do. A loving that doesn't include the possibility of liking is only a word that can cloak much hatred. Elevating the perceived sin and using it to discriminate against the "sinner" (who is so satisfyingly more sinning than we are!) is one of the most unpleasant traps Christians fall into.

Posted by: Erika Baker on Friday, 9 March 2007 at 3:45pm GMT
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