Thursday, 31 March 2011

Squaring equality with religion

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…

Posted by Simon Sarmiento on Thursday, 31 March 2011 at 3:05pm BST | TrackBack
You can make a Permalink to this if you like
Categorised as: equality legislation

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 brought up. Gay people are a necessary subset of Christianity, not something external or alien to it: not having realised this yet is where the real inhumanity of the Church currently lies.

As the great Anglo-Catholic slum priest Fr Dolling once said "The human are so ungodly and the godly are so inhuman!"

Posted by: Fr Mark on Thursday, 31 March 2011 at 4:47pm BST

"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. It's civil society's responsibilty, under the law, to say ***we privilege the belief in human equality*** over all other *competing* beliefs.

Between your two ears, you can believe whatever you like. But as far as *society* goes, if your belief is discriminatory (resulting in unequal consequences for different groups of humans), then your belief better STAY just between your ears! It has no place in civil society.

Posted by: JCF on Thursday, 31 March 2011 at 6:31pm BST

"The law should, instead, respect those who act on the basis of religiously informed conscience and make reasonable adjustments to accommodate them."


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 with the rest of society. Why should we assume that todays Christians - opposing changes in how we treat women and homosexuals in the church - are now correct, and should be given a let-out from obeying the law.


Posted by: Simon Dawson on Thursday, 31 March 2011 at 7:02pm BST

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.
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 factor that has nothing to do with your ability to use or pay for those goods or services. Either way, I'm discriminating.
If you offer employment, goods, or services to the general public, you better expect to serve the general public. All of the general public.
Otherwise we get Orthodox Jews refusing to hire you because you're a swine-eating Christian, or Christians refusing to sell to Muslims because Muslims worship a false God (yes, there are way too many Christians who believe this), etc.

Posted by: peterpi - Peter Gross on Thursday, 31 March 2011 at 9:36pm BST

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?

Posted by: sjh on Thursday, 31 March 2011 at 9:38pm BST

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.

Posted by: Simon Sarmiento on Thursday, 31 March 2011 at 10:24pm BST

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 implanted
in us by the experience of our civilisation, a
civilisation which has, in fact, emerged from one into
the other, and these very strong instinctive feelings,
which are common to great masses of people and for
which usually any one individual in all that mass can
only give a most inadequate reason, are something to
which an enormous volume of human experience has
contributed. 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, and this belief becomes so
strong in the community that it is received with the
air we breathe all through the formative years of our
life, and the result is an intense conviction for
which, as I say, we can hardly give any argument – an
intense conviction that one sort of thing is right and
the other wrong; and what most of us mean by our
conscience is just this body of feeling concerning
right and wrong which has been implanted in us as the
result of the accumulated experience of civilization.
From the point of view of the individual it is usually
more an emotion than a reasoned judgment; and it is
much more of the nature of prejudice than of an
argumentative conclusion. When people talk about
conscientious objections to obeying the law, it is
always quite impossible to distinguish between their
prejudice and their conscience; there is no standard
by which to determine. . . .
William Temple, CHURCH AND NATION: The Bishop Paddock
Lectures for 1914-1915

Posted by: Murdoch on Thursday, 31 March 2011 at 10:45pm BST

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.

Posted by: Fr Mark on Thursday, 31 March 2011 at 10:54pm BST

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 gays.

Prejudice assumes that it *is* informed. Religiously-informed is no more objective and secure a basis for public policy than The Protocols of the Elders of Zion. Both are, however, based in being "informed" - whether correctly or incorrectly.

More simply put, discrimination from "religiously informed conscience" is no less based on personal conviction than any other act of prejudice, and precludes the notion that a religiously-informed convicition may have been chosen or understood *around* an irrational prejudice.

Posted by: MarkBrunson on Friday, 1 April 2011 at 4:57am BST

Pardon, "conviction."

A "convicition" is what Ranger Smith passes on Yogi for stealing picanic baskets.

Posted by: MarkBrunson on Friday, 1 April 2011 at 4:59am BST

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 legitimised throughout Christianity." My question is "Why did they even start in the first place, and how can they continue this theology today?". Bad theology is bad theology, the number of souls who agree to it, or its duration, do not make it good.

There is a saying that in Heaven there is no distinction between male and female. For misogynists, that means females are neutered into some male semblance. Another vision is that each soul is judged on its merits and its gifts, and that each soul is able to manifest its full potential, irregardless of gender or sexuality.

Posted by: Cheryl Va. on Friday, 1 April 2011 at 8:03am BST

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 the same as those with religious beliefs. BUT they are not treated the same - it is on the whole unproblematic for someone with secular beliefs to act in accordance with those beliefs in a whole range of circumstances where religious people are faced with compromise between belief and action.

The whole point is to make space in law for people who differ from me, and not to compel them to be the same as me.

Posted by: Mark Bennet on Friday, 1 April 2011 at 10:23am BST

"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.

Posted by: Erika Baker on Friday, 1 April 2011 at 1:10pm BST

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 same theoretical principle, then discrimination against gay people will remain illegal. It could just be that, in some cases, some Christians might get away with it. It does not actually permit them to discriminate.

Which, in practical terms, gets us precicely nowhere.

Posted by: Erika Baker on Friday, 1 April 2011 at 1:51pm BST

ah ! here we see the informed conscience of religion' at work:

These people are God's friends, right ?

Posted by: Laurence Roberts on Friday, 1 April 2011 at 9:29pm BST


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 – as being of equal weight and standing; there is no hierarchy among these grounds."

Religion is theoretically as much protected in English Law as sexual orientation - and that includes (within reason to be tested in the courts) bad religion as well as good religion (and bad expressions of sexual orientation as well as good ones, within reason). That's the way it is.

You are arguing for how it should be (from your perspective) - That is a different argument. By all means argue to change the law - in fact understanding what the law is might motivate you to campaign effectively for the changes you want. But if you rely on English Law being as you think it is rather than as it actually is, you will run into problems.

What the law is and how it should be interpreted is a question for the lawyers. Whether the law is right or needs to be changed is a second question. And the extent to which the legal position ought to reflect or accommodate particular theological or ethical positions and understandings is a third.

All I was trying to do was to help to unpick the confusion/misinterpretation involved in confusing the different aspects. I was not asserting a particular view on the matters of substance, except to suggest that the substance of equalities legislation and anti-discrimination legislation is in part that it forces me (whatever I think my rights and best interests are) to have a view to the rights and best interests of those who are different from me.

Posted by: Mark Bennet on Friday, 1 April 2011 at 10:14pm BST

"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.

Posted by: Father Ron Smith on Saturday, 2 April 2011 at 12:12am BST

'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.

Posted by: Laurence Roberts on Saturday, 2 April 2011 at 6:11am BST

What Father Mark said.

Posted by: Laurence Roberts on Saturday, 2 April 2011 at 6:12am BST

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 is.
The other is that even straight Christians don't usually want to discriminate against gay people. There are many who believe that gay sex is wrong but who do not translate that into wanting to discriminate against actual people. A lot of things are wrong without us expressing our view by shunning those we believe have done wrong.

So when religion is protected, isn't the onus on the believer to show that his particular expression of his faith is reasonable? As least as reasonable as the requirement of the others to have their right respected?

I could just about foresee a situation whereby a photographer does not have to take photos of a civil partnership, because there are others out there who would happily do it, so the level of conflict is minimal.
But 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.

I must say, all in all, it is well known that homophobia is harmful, that there is good pro-gay theology, that it is not Christian to shun the sinner, that most Christians do not want to discriminate against gay people.

So surely, if a judge heard a case about conflict of rights and interests, he would weigh up the respective harm done and the consequences of allowing/not allowing discrimination in this particular case, and it would be very very unusual if he genuinely judged in favour of discrimination on the grounds of religious belief?

Posted by: Erika Baker on Saturday, 2 April 2011 at 7:39am BST

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 of adoptive parents?

It's not that I like the idea of any child being adopted into a household of prejudice and homophobia, but I don't quite get the logic for singling out adoptive parents, if it's ok for child-bearing parents to have children?

I'm just asking, on a logic basis.

Posted by: Susannah on Sunday, 3 April 2011 at 5:40pm BST

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 the children it is legally responsible for, and once you have accepted research that shows that growing up in a homophobic household is psychologically damaging to gay children, the logic is simple.

Posted by: Erika Baker on Sunday, 3 April 2011 at 8:11pm BST

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 realise that in practicality, exercising discrimination over who should adopt a child is the 'best case scenario' because it's all that's politically going to be achieved.

Nor would I personally favour children being taken away from parents who are homophobic.

But I'm not sure the State can be said to be acting consistently if it uses homophobia as a reason to ban from adopting, on grounds of "putting the child first", if it does not "put the child first" in the case of children born into homophobic households!

Posted by: Susannah on Monday, 4 April 2011 at 1:12am BST


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 should get a proper education, you would not be selected as a potential adopter.
That doesn't stop you from having children naturally and treating boys and girls differently.

The principle is already applied as a matter routine.
The only question is which aspects of adult behaviour comes under the category of “unacceptable”. And in a country that has civil partnerships, full equality for gay people everywhere other than in the religious sphere, it would be very strange if a potential adoptive parent’s blanket statement that they could not accept a gay child as equal and moral would be considered to be more important than a potential gay child’s right to be accepted for who they are.

Posted by: Erika Baker on Monday, 4 April 2011 at 8:10am BST


The state does not actively choose or approve the natural parents of 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.

Posted by: Pat O'Neill on Monday, 4 April 2011 at 11:27am BST

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 for bearing with me patiently, while I got my head round it!


Posted by: Susannah on Monday, 4 April 2011 at 2:00pm BST
Post a comment

Remember personal info?

Please note that comments are limited to 400 words. Comments that are longer than 400 words will not be approved.

Cookies are used to remember your personal information between visits to the site. This information is stored on your computer and used to refill the text boxes on your next visit. Any cookie is deleted if you select 'No'. By ticking 'Yes' you agree to this use of a cookie by this site. No third-party cookies are used, and cookies are not used for analytical, advertising, or other purposes.