Friday, 15 February 2013

Conor Gearty in The Tablet: Human rights and faith convictions

The following article appeared last week in The Tablet, and is reproduced here by permission of the editor.

Human rights and faith convictions
CONOR GEARTY
When the tide turned

Recently arguments over same-sex marriage have drowned out other legal cases where respect for religious conscience has prevailed. As debates rage over what constitutes human rights, secular society remains unpersuaded by the Church’s traditionalist stance

The rights and wrongs of their position notwithstanding, church leaders would surely be forgiven for feeling that they are being overwhelmed by the issue of gay rights. It seems to be everywhere, with even a Conservative Prime Minister leading the way on imposing a new definition of marriage in the UK, by incorporating same-sex partners, a move that would have been condemned on all sides as either idiosyncratic or extremist just a few years ago. How did this situation come about? Will it change any time soon? What can the Church do about it?

The first of these questions is the easiest to answer. The shift to a human-rights culture signalled by the Universal Declaration of Human Rights in 1948 has put down deep roots in Europe, where it has been supported not only by the developing union between an ever greater number of states within the continent but also by the existence of a politico-legal mechanism to ensure the protection of human rights, in the shape of the Council of Europe and its flagship juridical rights champion, the European Court of Human Rights, based in Strasbourg. The latter body has been operating now for over 50 years and it would not have survived if it had regarded itself as merely a diviner of the exact intent behind the words used by the drafters of the European Convention on Human Rights – the 1950 document over which it has definitive authority. The terms of that rights instrument are general, as was the intent that lay behind it. So far as the court was concerned it was expand or shrivel, and like most institutions, its judges chose the former option.

This has had an impact across a range of European legal systems. The Scandinavians have found themselves compelled to allow judicial processes against which their social democratic instincts rebelled. The Italians have been repeatedly excoriated for unacceptable delays in their legal system. And recently, of course, the UK has had its collision with Strasbourg over the right of prisoners to vote. Most countries have similar stories to tell.

Then of course there have been the gayrights cases. The Strasbourg court operates by balancing a quasi-democratic sense of what human rights should require in the Europe of today against a desire to give states a degree of leeway, particularly on ethical and moral issues. But the fewer states there are that adopt a punitive moral position, the more likely the court is to take it on. In this way the criminalisation of homosexual acts has been picked off in a series of cases that began in Northern Ireland and went via Ireland to reach other bastions of tradition such as Cyprus. Restrictions on gay people in the military were next to fall, and since then a range of decisions have extended the rights of gay people in relation to succession to tenancies, child custody and same-sex partnerships.

The European Court of Human Rights has not brought about these outcomes in isolation. Indeed some have been the achievement of the indigenous British courts. All of these changes have gone with the grain of European culture’s consistent and now decades-long prioritisation of individual freedom and personal flourishing which, together with the imperative of non-discrimination, have superseded older, more morally prescriptive codes of behaviour. The Churches, however, remain wedded to these traditional ways even though they no longer appear persuasive to the great majority of secular-minded persons (and indeed others within the Churches themselves).

And so to the second question: will things change any time soon? It seems unlikely. After civil partnerships, how can British society be persuaded that marriage must still always be between a man and a woman so far as the state itself is concerned? Mainstream experts in human rights see gay rights as an essential component of what human rights are. This was evident after the minority report following the recent Strasbourg case of the Islington marriage registrar Lillian Ladele (who refused to conduct civil partnerships on the basis of her religiously rooted objection to them). Dissenting from the predominant view that the council’s disciplinary action against Ms Ladele had not breached her convention rights, judges Vucinic and De Gaetano wrote of what they called the “combination of backstabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured ‘gay rights‘ over fundamental human rights)” which had “eventually led to her dismissal”. The borough had, they wrote, “pursued the doctrinaire line, the road of obsessive political correctness”. Writing about these dissenting dicta in the Ladele case, the University College London scholar Ronan McCrea has called them “extremely intemperate and disturbingly worded”. Meanwhile, the Vatican’s UN Human Rights Council representative Archbishop Silvano Tomasi has spoken of “a movement within the international community and the United Nations to insert gay rights in the global human-rights agenda”.

  • Churches should probably stop trying to explain themselves – in the current climate it seems only to make things worse

If gay rights are indeed here to stay, what should the Churches do about it? To start with, they should probably stop trying to explain themselves, since in the current climate of what constitutes common sense this seems only to make things worse: Tomasi’s likening of controls on same-sex relations to “forbidding practices like incest, paedophilia, or rape – for the sake of the common good” strikes many religious and non-religious alike as nonsensical. And saying that gay marriage destroys “the essence of the human creature” and that it is a “threat to world peace”, as the Pope has reportedly recently done in various messages and speeches, might well be thought to fall into the same hyperbolic category. But the Church can hardly go on the offensive either. It never occurs to anyone to call for a renewal of the criminalisation of homosexual conduct and a revoking of recent advances in gay rights – this must be because these are clearly now irreversible changes.

In truth, the Church is stuck, loyal to tradition, but a return to basics looks unlikely. If we look past the gay-rights issue, the recent European Court of Human Rights case which involved Ms Ladele (together with the successful applicant Nadia Eweida and two other disappointed litigants) has much of value to say about the importance of religious freedom and the need to protect religious conscience as far as is possible – allowing Ms Eweida to claim victory in her quarrel with British Airways over the wearing of her cross. But these important points about secular society’s sympathy to religious feelings are bound to be lost in the noise generated by arguments over same-sex marriage.

  • Conor Gearty is professor of human-rights law at the London School of Economics.
Posted by Simon Sarmiento on Friday, 15 February 2013 at 9:00am GMT | TrackBack
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Categorised as: equality legislation
Comments

What can the more traditionalist churches do? Well, not seeking to control secular society's rules, applicable to non-adherents as well as to their adherents, would be the smart move. It is much harder to claim human rights require secular submission to the views of some religious people than to claim the right to follow one's own religious beliefs.

Islington marriage registrar Lillian Ladele took a job that required her to act as an agent of the State, and demanded she be permitted to decline to do that job consistent with the State's requirements as embodied in a facially neutral law of general applicability. That's insisting that her religious freedom subvert the office's functioning, and the State's reasonable requirement that public employees not impose their personal agendas on citizens. who pay their salaries.

Posted by: John Wirenius on Friday, 15 February 2013 at 12:02pm GMT

It could also be that the reason that the right wing churches are feeling so stuck and besieged on this issue is that they are simply wrong about it.
The belief that God created all things and declared them to be good somehow has to be reconciled with a belief that some people are "intrinsically disordered" and therefore inferior in both goodness and humanity. That circle simply cannot be squared.

Posted by: Counterlight on Friday, 15 February 2013 at 4:02pm GMT

Lillian Ladele had her job as a registrar before Civil Partnerships came in in 2004. So she could reasonably say that what she was asked to do after 2004 was not consistent with the terms and conditions that applied when she originally accepted the job.

Posted by: Jamie Wood on Friday, 15 February 2013 at 4:09pm GMT

Jamie,
yes, but so what? Job descriptions change all the time, legal requirements change all the time. Should we have a general opt out from anything new for people who happen not to agree with the change?

Posted by: Erika Baker on Friday, 15 February 2013 at 4:32pm GMT

I think Counterlight is on to something.

My personal tradition doesn't include Augustine and all those crazy theological writings about sin. I was happy to find that Celtic Christianity didn't seem to have all that either. When one encounters the Living Christ, there's no litmus test. It's just love and peace, and some sense that it be shared. It isn't about drawing lines and judgement.

Very interesting article. It appears that secular human rights moved far ahead of the churches in justice and compassion in Europe. Contrast that with Martin Luther King, who preached liberation as a theology (according to Coretta Scott King, the Kings were not homophobic, to say the least).

Posted by: Cynthia on Friday, 15 February 2013 at 5:04pm GMT

Jamie. The new head of Barclay's Bank has said that any one who doesn't like their new ethical basis should leave. Lillian Ladele was in exactly the same position. She can't pick and choose which bit of her employers policies to adhere to.

Posted by: Richard Ashby on Friday, 15 February 2013 at 6:44pm GMT

I agree with Counterlight; I was merely answering the question posed by those religious bodies that reach, for reasons I do not find persuasive, the contrary conclusion.

Jamie, the response "so what" does seem apt here; government policies change, the law changes, and government employees working in their official capacity have no right to pick and choose which laws they will follow.

Posted by: John Wirenius on Friday, 15 February 2013 at 8:48pm GMT

So when the Navy medic, Michael Lyons, was ordered to attend rifle training in 2011 before deployment to Afghanistan and conscientiously objected, did he have a right to do so?

Although he was never ordered to kill anyone, was the military right to find him guilty of wilful disobedience? In spite of his clearly defined military duty, many liberals felt he was treated unfairly and that there could have been a reasonable accommodation of his beliefs.

In contrast, Ladele's responsibilities were unilaterally extended by Islington. Her unwillingness to accept the extension of her duties to solemnise CPs was enough for the council to damn her, while so many would happily excuse the military medic from compulsory rifle training.

Oh yes, don't tell me. It's because, unlike orientation, 'chain of command' is not a 2010 protected characteristic!

Posted by: David Shepherd on Friday, 15 February 2013 at 11:24pm GMT

"Tomasi’s likening of controls on same-sex relations to 'forbidding practices like incest, paedophilia, or rape – for the sake of the common good' strikes many religious and non-religious alike as nonsensical."

Agreed. I would be interested in the author of the article expanding upon this juxtaposition by reflecting upon the question of "harm". Incest, paedophilia, rape, are heinous harmful acts. But same sex expression between consenting adults, where is the harm that is at the heart of criminal and social sanction?

Posted by: Rod Gillis on Saturday, 16 February 2013 at 12:54am GMT

Erica
"But so what?" seems to me to be a little harsh. While agreeing that there is no right in law to insist that one's job does not change, we can have sympathy for those who leave for reason of conscience,when their job changes.

Posted by: John Sandeman on Saturday, 16 February 2013 at 4:36am GMT

While not disagreeing with any of the above points, I think a key factor that is often missed is that Ms Ladele was a CIVIL registrar performing CIVIL marriages. This being the case, religious views clearly have no bearing.

In the case of abortion, for example, hospitals do not preform "civil abortions" as opposed to, say, "Catholic abortions", only performed in Catholic hospitals in exceptional circumstances. Doctors and nurses are therefore given the option of conscientious objection.

The law allows civil and religious marriages and no one registered to perform religious marriages will be required to perform same-sex marriages if they do not wish to do so because of their religious beliefs.

The religious views of civil registers are not relevant to civil marriage. I think this is a key distinction, in practice if not in law.

If Ms Ladele believed marriage is a religious sacrament, performed in the sight of God, why was she performing civil marriages at all?

Posted by: Iain Baxter on Saturday, 16 February 2013 at 5:28am GMT

Could it possibly be that human justice has moved before the Church on matters of social equity - with rights applying to all sectors of society - rather than exclusion for those of whom the Church does not approve?

It seems to me that social justice would be one of the primary aims of a loving Creator God. And if society is pre-empting the Churches on achieving this outcome, what does that say about the Church and her basic Mission to serve the world that God has created - preaching God's salvation, love and mercy and justice to all His human creatures

Posted by: Father Ron Smith on Saturday, 16 February 2013 at 9:57am GMT

I have just watched this video link to the proceedings at the Parliamentary Commission where Dean Jeffrey John appears as one of those making submissions. It is well worth looking and listening to this tireless advocate for Gay rights. Jeffrey appears about 5 minutes into the video:

http://t.co/ssv8VoAN

Posted by: Father Ron Smith on Saturday, 16 February 2013 at 10:06am GMT

It is interesting that a change as substantial as the introduction of Civil Partnerships only appears to have provoked one resignation across a national registration service. Perhaps in other branches accommodation was made for those who had been appointed long before such developments were ever anticipated.

Should not someone in Local Authority's HR dept or a Minister of religion enquired why this one development caused offence when divorce, which according to the gospels could/should (?) provide much greater hurdles for people of faith does not appear to have upset a Registrar for Marriages. People of faith should surely display consistency when making a public stand.

Posted by: Tim Newcombe on Saturday, 16 February 2013 at 11:26am GMT

John Sandeman
I agree and I have every sympathy for Ms Ladele. But Jamie's comment seemed to imply that because her job changed after she had been working in it for years she had a rightful claim to saying she could not comply.

David Shepherd,
I'm not sure that Michael Lyon's case falls under the opt out from the equality law?
Again, this is not a question of what moral stance any one of us might or might not have personal sympathy with but one of the respective legal situation.
I would happily lobby for the law Michael Lyon's was convicted under to be changed. But until it has been changed my personal sympathy for him is not enough to say that he should be allowed to follow his conscience without accepting the consequences that come with that.

Posted by: Erika Baker on Saturday, 16 February 2013 at 12:43pm GMT

"People of faith should surely display consistency when making a public stand."

Most people of Christian faith actually support Civil Partnerships, just as they support marriage equality.
Those who call their objection "Christian" are actually the minority within their own church.

Posted by: Erika Baker on Saturday, 16 February 2013 at 2:32pm GMT

Re David Shepherd and the case of the Navy medic. I don't think the extraordinary circumstances of the military context are really analogous. My understanding is that even chaplains, for example, have the right to pick up a weapon for self defense. There may be good reason for having a medic or a padre at least know how a weapon works--even if one never itends to bear arms.

The case of the civil registrar is difficult perhaps, but the difficulty it exhibits is that of balancing rights, and in this case, deciding what is required of civil servants with regard to the provision of a civil ceremony to which members of the public are entitled.

Posted by: Rod Gillis on Saturday, 16 February 2013 at 3:08pm GMT

Lillian Ladele's stance on civil partnerships did not prevent Islington offering a full registration service to its residents. The council could have accommodated her conscientious objection had it so wished. As the robust dissenting judgment of two of the ECtHR judges, Judge Vucinic and Judge De Gaetano, stated, it was "a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured 'gay rights' over fundamental human rights)" that eventually led to her dismissal. The judges added, pointedly: "Instead of practising the tolerance and the 'dignity for all' it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness."

However this was only the minority view. Accordingly, unless the court's majority judgment in the Ladele case is reversed by the Grand Chamber, concerns must remain over the effectiveness of the 'quadruple lock' in the Marriage (Same Sex Couples) Bill.

Posted by: David Lamming on Saturday, 16 February 2013 at 11:13pm GMT

Re the comment by David Lamming. Interesting. When these kinds of situations end up before the courts, the courts on the whole seem to do a reasonable job of weighing the issues in the balance. The fact that various high court decisions, on any matter really, have dissenting opinions is illustrative of the difficulties faced in handing down any kind of judgement. Religion has become a really hot conductor with respect to rights and freedoms. The Canadian Foreign Affairs department is opening a new "Office for Freedom of Religion". Its a controversy. Those opposed see religion as a source of social conflict, unrest, intolerance, and even violence. I think it would be wise for Christians to be more studied and nuanced about the tension between human rights and some religious principles, not because we may end up being thrown to the lions, but rather because we are increasingly seen (perhaps in a skewed way) of being too interested in throwing those others with whom we disagree to the lions.

http://www.cbc.ca/news/canada/story/2011/10/03/pol-office-religious-freedom.html

Posted by: Rod Gillis on Sunday, 17 February 2013 at 1:11am GMT

How we handle those who dissent remains one of the principle markers of a generous democracy.

In the case of Ms Ladele I think there was an attempt at a reasonable accommodation, I think the European dissenting opinions (although interesting) are a caricature of the facts. Tim Newcombe is correct in pointing out how few casualties here were following such radical change, but we all have to admire how our opponents have made so much out of so little - even though each one should be precious to us.

If Ladele had succeeded I think the common sense approach wold have worn thin, eventually.

Just where would the opt outs end?
Registrars record births and deaths too.
Would registering the death of my civil partner be something she would like to avoid? Or might she object to registering the birth of our children?
What about the other ancillary services Islington and other local authorities help folk celebrate, adoption, child naming and marking anniversaries?
And if she was comfortable with these
How comfortable would I be having Ms Ladele assist at these great moments knowing she would not register our partnership?

While this pick and mix might be catered for, it will make the job of a Superintendent Registrar quite challenging and no one seeking these exemptions could rise to that post.
And in this game of fine balances why should those who were registrars under the previous dispensation be given special consideration. Surely those who subsequently adopt a faith that forbids affirming same sex relationships deserve the same job protection being advocated for Ladele?

It goes on .....

Posted by: Martin Reynolds on Sunday, 17 February 2013 at 1:17am GMT

Martin:

It's clear that births, marriages and deaths were already part of Ladele's remit as a registrar. There is no reason to believe that she had sought exemption from any of those existing duties on similar grounds. There is no evidence that she had balked at registering the births, adoptions and deaths in relation to homosexuals, so why suggest it as a possible outcome, had her ECHR petition succeeded?

The issue was a unilateral alteration of her conditions of employment to perform the newly introduced civil partnership ceremonies.

Your remark suggests that if we don't compel public servants against their consciences to accept new conditions of employment (in this case to register any new form of union), they'll have grounds to opt out of any of their existing agreed terms and conditions. That's a non-sequitur.

Although I can see why presenting conservative Christians in that light is appealing to liberal thinkers, it is still a complete distortion of the facts that we now have.

Posted by: David Shepherd on Sunday, 17 February 2013 at 12:45pm GMT

I thought there was some legal mileage (for Ladele) in considering the change in the nature of the job after one has started in it.

Point is this. Registrars are who the government uses to register things related to civil status (birth, death, marriage). When CP came along it was a change of status wholly reliant (because civil and not religious) on registrars. Obviously (we now know) the legislation was flawed because it did not designate all registrars in this way automatically (hence I thought there was a point to argue, but only the courts can finally weigh up the matter as it is in dispute).

As to marriage they are already registrars of marriage. Their job is to register the marriage of those legally allowed to enter into marriage according to the laws of the day.

An opt out for registrars would be a very bad thing in principle. It would create dissension in the service, an uneven level of cover and all sorts of further anomolies. This would then spread to other areas of public service and one would end up with Doctors and nurses refusing to treat gay people 'because they were were married' and so on. Discrimination of the vilest kind would very soon become a daily reality and this is not conducive to the public good.

Posted by: Craig Nelson on Sunday, 17 February 2013 at 2:00pm GMT

Civil servants can't opt out of performing the civil duties of implementing civil rights. This woman is not above the law, no one is, or should be. It really is that simple.

She doesn't have to be a civil servant, it's not a human right. Equal rights for LGBT is a human right.

There is no way to "play nice" here. Human rights are human rights. You exempt one civil servant from having to implement the right, where does it stop? Yes, it mirrors the CoE, as the CoE is the "established" church.

Posted by: Cynthia on Sunday, 17 February 2013 at 4:52pm GMT

What IS clear and factual is that Ladele, had no opportunity to deal with Civil Partners in the context of her other activities as a registrar. If she found it unconscionable just completing the civil partnership schedule which would be signed by the superintendent, it seems unlikely she would wish to affirm this relationship otherwise.

I can only guess that the other comments on my post by David Shepherd were because he did not read it carefully enough and failed to understand the wider context referred to in Conor Gearty's article.


Posted by: Martin Reynolds on Sunday, 17 February 2013 at 10:28pm GMT

'If she found it unconscionable just completing the civil partnership schedule which would be signed by the superintendent, it seems unlikely she would wish to affirm this relationship otherwise.'

The role of a registrar is simply to fulfil the duties assigned under the agreed terms and conditions of employment. The registrar is not there to 'affirm' the civil partnership relationship otherwise.

Although the ECHR stated that the aim of the Islington local authority 'Dignity for all' policy was legitimate, in respect of the means employed to secure that aim, the Court cited Evans vs. UK where, even in the case of competing considerations between embryonic right to life and the consent of a party to IVF treatment, a wide margin of appreciation was granted to the national authorities. It was only the Grand Chamber that issued the declaration that there was no breach of the right to life.

The margin of appreciation simply means that there is not enough consensus across European States for the Court to intervene in National Policy.

'The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007‑I). In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them.'

Posted by: David Shepherd on Monday, 18 February 2013 at 9:02am GMT

Perhaps you have not attended the adoption ceremonies,naming of child and anniversary celebrations the local registry offices now hold. I have found them very affirmative.


Posted by: Martin Reynolds on Monday, 18 February 2013 at 10:02am GMT
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