Comments: Reflections on Religion and Sexuality...

As Warsaw prepares for Eastern Europe's first EuroPride event, the threats are already flying. When we watch rainbow flags versus skinheads with church hierarchs cheering on the thugs, let's remember who the real moral relativists are.

Posted by Counterlight at Saturday, 17 July 2010 at 12:29pm BST

Disappointing that Adrian O'Neill falls into the old reactionary canard of implicitly accusing his opponents of meta-ethical cultural relativism. Those of us who are a little cautious about elevating the language of Human Rights to the level of holy writ are not necessarily moral relativists (who is? I've never met one), nor are we unfriendly to the aims of human rights rhetoric - we are simply suspicious of attempts to make the language of Human Rights an ends rather than a means. While we don't deny that there might be "absolute moral values," we are suspicious of the claim that O'Neill makes, that they are wholly or unequivocally "captured in the concept of Human Rights," itself a historically and culturally contingent idea. Moreover, if the language of Human Rights is a means to an independent end, then it cannot be claimed that the rhetoric of Human Rights has an absolute monopoly upon that end - there might well be other ways of getting there. And this is where the claims of religion have to be taken seriously.

Posted by rjb at Saturday, 17 July 2010 at 12:59pm BST

This is another example of the secular world showing its ability to clearly discern the moral course of action, while the church (or religion generally) is blinded by its own sanctified bigotry. This is unfortunately how the secular world sees religious people, as the leading source of prejudice, discrimination and hatred of others. So the ABP can describe human rights as a second order concern, while maintaining silence over the presecution of LGBTs in the name of unity. WWJD?

Posted by Henry at Saturday, 17 July 2010 at 2:57pm BST

I was most grateful when "badman" immediately flagged up the handing down of this judgment on an earlier thread. Now it is interesting to read what Aidan has to say.

There can be no doubt that this is a very significant point for lesbian and gay people, the implications of this judgment are immense, and it seems not only for the UK.

It can only be a very short time till active discrimination against gay people by ALL people and organisations in the UK will have to cease. Far from extending the ability to discriminate against gay people as (sadly!) William Fittall was demanding from Parliament - the idea of gay people being excluded will soon be as impossible in practice as the sacrifice of virgins is to those who might still believe in it.

Posted by Martin Reynolds at Saturday, 17 July 2010 at 3:32pm BST

rjb

'And this is where the claims of religion have to be taken seriously.'

They are indeed being taken seriously; unfortunately that is the problem, as Lord Hope observed:

'More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years' imprisonment in Malawi.'

These outcomes threaten to poison the well for all of us; Lambeth Palace may have managed to convince itself that it is steering a steady course between Scylla and Charybdis, but clearly the Law Lords disagree.

The Church of England's ability to influence Parliament is in rapid decline; unsurprisingly, since rampant homophobia and misogyny in our society is also in decline, and the Church is perceived as being in opposition to equality for all. However much Reform would like to clothe itself in the guise of English tradition, fundamentalism of this ilk is alien to our traditions...

Posted by chenier1 at Saturday, 17 July 2010 at 7:48pm BST

Here's one for thinking about, however, from someone who is gay and from the US now living in the UK. In the US we took a very distinct position that sexual orientation was not a choice. That put gay men and lesbians on a par with African Americans, Hispanics and racial minorities for legal, civil rights purposes. A lot of effort was put into opposing reparative therapy to show that that was empirically true. The escape hatch was the category of bisexuality: a third way that involved choice. Having lived in the UK for six years, it is absolutely clear to me that sexual orientation here is seen as a more fluid thing: a *lot* of people (given certain constraints of class, education etc.) would see themselves as marginally open to same-sex behaviour without considering themselves bisexual (or probably anything else). Here's the bottom line. The UKSC seems to be buying in to an American model, which is probably a necessary model there--taking into account the culture etc. but which may not be very well suited (empirically!) to the culture of the UK, and now it's being generalized to other (liberal democratic = morally acceptable) cultures as well. I'm *not* a cultural relativist, but are these valid generalizations? I'm honestly asking... not trying to end the conversation but to move away from abstractions like homophobia, which really beg the question. Can one really build a principled legal culture around sexual orientation (=identity), or is something else like 'dignity' as it relates to sexual behaviour (with other adults) or 'liberty/freedom' necessary to prop it up. I'm not sure that 'sexual identity' does all the work that we may be asking it to do here...

Posted by Scot Peterson at Sunday, 18 July 2010 at 9:08am BST

"a *lot* of people (given certain constraints of class, education etc.) would see themselves as marginally open to same-sex behaviour without considering themselves bisexual (or probably anything else)."

Based upon my experiences as a gay man in 70s and 80s America, this is also historically true for a lot of men here. There were (and possibly are) a lot of men who would "fool around" with another guy, without ever considering themselves anything but straight. But they do not talk about it.

Posted by Bill Dilworth at Sunday, 18 July 2010 at 1:26pm BST

If religion is a protected identity (and certainly one cannot argue that religion is a fixed thing like race or national origin), I see no reason why sexual orientation (whether "chosen" or not) should not also be protected.

Posted by Pat O'Neill at Sunday, 18 July 2010 at 2:02pm BST

'The UKSC seems to be buying in to an American model'

I think you need to acquaint yourself with the way our Courts work; you may be overlooking the fact that our Judges are not elected, nor are they appointed by politicians.

Furthermore, strange as it may seem, what happens in the USA is not something which overly troubles our Courts until it becomes a matter for them; extraordinary rendition is one example, and the ongoing legal proceedings bear witness to that fact.

Lord Hope noted that:

'The Court was referred to a number of decisions in Australia, New Zealand, South Africa, the United States and Canada. I do not think that they reveal a consistent line of authority that indicates that there is an approach which is universally accepted internationally.'

As Lord Rodger's pointed out:

'At one time there would have been debate as to whether homosexuals constitute a "particular social group" for the purposes of the Convention. But, in more recent years, it has come to be accepted that, at least in societies which discriminate against homosexuals, they are indeed to be regarded as a particular social group.'

citing Lord Steyn's observations in Islam v. Secretary of State for the Home Department Immigration Appeal Tribunal(1999):

'The unchallenged evidence in this case shows that women are discriminated against in Pakistan. I think that the nature and scale of the discrimination is such that it can properly be said the women in Pakistan are discriminated against by the society in which they live. The reason why the appellants fear persecution is not just because they are women. It is because they are women in a society which discriminates against women. In the context of that society I would regard women as a particular social group within the meaning of article 1A(2) of the Convention.'

In other words, sauce for the Pakistani goose is sauce for the Iranian gander...

http://www.bailii.org/uk/cases/UKHL/1999/20.html

Posted by chenier1 at Sunday, 18 July 2010 at 4:31pm BST

Incidentally, I should perhaps add that Lord Millett dissented from the Judgements of Lord Steyn, Lord Hoffmann, Lord Hope and Lord Hutton in the Islam v. Secretary of State case I have referred to above. But he specifically asserted that:

'Thus I would accept that homosexuals form a distinct social group. In a society which subjected practising homosexuals but not non-practising homosexuals to persecution the relevant social group would still consist of homosexuals, not of the subset practising homosexuals. A non-practising homosexual would have no difficulty in establishing that he was a member of a persecuted group. His only difficulty would be in establishing that his fear of persecution was well founded, having regard to the fact that he was not a practising homosexual. This would be a matter of evidence, but given the hostility encountered by all homosexuals in such a society and the obvious problems the applicant would have in satisfying his tormentors of his own sexual abstinence, I doubt that the difficulty would be a real one.'

The unanimous decision of the Supreme Court some 11 years later, on precisely those terms, can hardly be described as unexpected, however much Lambeth Palace might like people to believe otherwise.

It is to be hoped that the Archbishop of Canterbury does not attempt to persuade the Supreme Court that members of the Church of England, or any other church, should be able to torment people as a sincere expression of their religious beliefs; the example of the people who claim that Jeffrey John may well be lying about his own sexual abstinence fits only too well with Lord Millett's predictions...

Posted by chenier1 at Sunday, 18 July 2010 at 6:46pm BST

chenier1:

My point was a jurisprudential one, which had to do with the standard of decision (I know that the judicial appointments commission appoints judges here. Political? I couldn't possibly comment). Generalizing that way: sauce for the goose (sauce being a metaphor) doesn't necessarily deal with the empirical question of whether being gay is immutable. I used to believe it was; now, I'm not sure that it doesn't depend on circumstances. It was immutable for me, but the reasoning of the case reduces 'dignity' to 'identity', and I'm not entirely sure that that's going to serve long term interests in deciding cases consistently, especially if 'bisexual' begins to swallow up 'gay' and 'lesbian'. That's the point I'm making. And when the point becomes more general and (supposedly) applies to other cultures, then I think there may be problems here. Similarly, 'particular social group' seems to me to be singularly unhelpful. Does that include bowling clubs? But I'm more than willing to listen. (I teach UK politics at Oxford, have written for UK law journals, and I have some, but not a complete, understanding of how the UK courts work.)

Posted by Scot Peterson at Sunday, 18 July 2010 at 8:13pm BST

Scott
Would you not be able to include bisexuals in your definition of people likely to suffer from homophobic persecution? After all, all the pressure groups rightly support lgBt people. And the persecution will, in any case, be based on the homosexual element in a bisexual person and will therefore be indistinguishable from persecution of 100% gay or lesbian people.

Posted by Erika Baker at Monday, 19 July 2010 at 8:25am BST

Scot Peterson

One point which may have escaped your otherwise comprehensive analysis of our legal system is that the Law lords do not function in the way the Supreme Court in the States does. The stand-off between the Court of the Appeal and the House of Lords, in which the Court of Appeal had absolute power to block the way to the House of Lords, but the House of Lords had absolute power to make final decisions once a case got there, was resolved in 1966 in order to enable their Lordships to over-rule themselves; they still create binding precedent, of course, but that precedent is tightly focussed in order to reduce the number of times they have to overrule themselves.

I'll spare you the dissertation on Pepper v Hart, 1992, and simply observe that their Lordships threw caution to the winds and decided that they could look at the 'legislative history of an enactment as an aid to its interpretation' .

As Lord Hope, at paragraph 1 of the Iran case notes:

'These appeals raise the question as to the test which is to be applied when considering whether a gay person who is claiming asylum under the Convention relating to the Status of Refugees 1951, as applied by the 1967 Protocol ("the Convention") has a well-founded fear of persecution in the country of his or her nationality based on membership of that particular social group.'

A 'particular social group' may seem unhelpful to you, but since the people who wrote the legislation used those words at article 1A of the Convention, the Courts have to decide on those words, and not some other form of words which you or I may prefer. The people asking refuge from imprisonment and murder probably don't mind what the words are provided they are granted asylum.

None of this has anything to do with 'the empirical question of whether being gay is immutable', not least because it's a hopelessly broad question incapable of meaningful answer, and the Law Lords avoid those sorts of questions like the plague.

I'll take it on, though; one obvious answer, in this particular case, is that if being gay is mutable, then gay people in societies like Iran and the Cameroons, where being detected as being gay results in severe state-sanctioned punishment, would be straight.

They are not straight...

Posted by chenier1 at Monday, 19 July 2010 at 12:57pm BST

Lord Millett dissented from the Judgements of Lord Steyn, Lord Hoffmann, Lord Hope and Lord Hutton in the Islam v. Secretary of State case I have referred to above. But he specifically asserted that:

'Thus I would accept that homosexuals form a distinct social group. In a society which subjected practising homosexuals but not non-practising homosexuals to persecution the relevant social group would still consist of homosexuals, not of the subset practising homosexuals. A non-practising homosexual would have no difficulty in establishing that he was a member of a persecuted group. His only difficulty would be in establishing that his fear of persecution was well founded, having regard to the fact that he was not a practising homosexual. This would be a matter of evidence, but given the hostility encountered by all homosexuals in such a society and the obvious problems the applicant would have in satisfying his tormentors of his own sexual abstinence, I doubt that the difficulty would be a real one.'

'practising homosexuals'

This term is very offensive to me. Just think about it. Just think EQUALITY.

Go on ..........

Posted by Pantycelyn at Monday, 19 July 2010 at 3:11pm BST

Religion is not immutable, either. The issue is about persecution and/or discrimination, not the mutability of the characteristic which evokes that persecution or discrimination, surely.

Posted by Tobias Haller at Monday, 19 July 2010 at 3:28pm BST

The court's explanations offer us yet another example of how it really works; along with a growing-immense range of additional commentary from nearly every important cultural sector - self-regarding orthodoxist religions possibly being the key exception to the corrective changes involving us all.

Spinning all that consensus as empty, facile modernity, falsely caught up in its own rush to be perceived as fashinable - is, what? Not the deep, authentic religious revelation it so often preaches itself to be?

Two provisional impacts seem fairly clear by now. Firstly, our religious anthropologies need to be open-ended and capable of correction and of learning from new information - the empirical floodgates have been opened, by the decoding of the genome and much else. Secondly, we do not need to have been able to completely map the expanding real cosmos in utterly exhaustive and tested details in order to say with some workable confidence that the earth is hardly flat when it comes to women and/or queer folks.

Will Canterbury or York stop rehearsing flat earthisms, any time soon?

Posted by drdanfee at Monday, 19 July 2010 at 6:12pm BST

Erika, I think we *need* to include bisexual people in order to take my issue seriously that sexuality may be a more fluid thing than the doctrinal position in the United States would admit. The problem is that building a legal doctrine on immutability may not do all that we're asking it to do if there are a significant number of bisexuals (who could by definition just engage in sex with people of the opposite gender) or if sexuality is fluid. With me, it's not, and that's why I was always happy with the US approach. But for a lot of people and perhaps it differs from culture to culture, that may not be true....

Posted by Scot Peterson at Monday, 19 July 2010 at 7:57pm BST

Scot
If a person was seeking asylum and could demonstrate that their life was in danger because they were in a relationship with someone of the same sex, presumably, that alone would qualify. The fact that they might, possibly, also be physically and emotionally capable of having a heterosexual relationship does not reduce the danger they're in one little bit.

Is this really about defining sexual orientation, or is it rather about recognising that people are being persecuted because of how others see them?

Other way round - could you conceivably foresee a situation where someone can prove physical persecution on the grounds of sexuality who would then be refused because he/she is actually bisexual and not "really" gay?

Posted by Erika Baker at Tuesday, 20 July 2010 at 5:53am BST

Minorities are the creations of majorities.

Posted by Counterlight at Tuesday, 20 July 2010 at 4:31pm BST

Pantycelyn

'This term is very offensive to me. Just think about it. Just think EQUALITY.'

As I have mentioned in commenting on an earlier article, the Law Lords are bastions of tradition and of precedent; they are not radical ahead-of-the-trend people. I appreciate that you are distressed by Lord Millett's use of language, but 11 years ago the use of the term gay was not nearly as common as it is today. 11 years ago Lord Millett was an accurate prophet as to the way in which gay people like Jeffrey John might be tormented, and he spoke out unequivocally in naming it as, and thus condemning it as, torment.

I think he deserves you to cut him some slack...

Posted by chenier1 at Wednesday, 21 July 2010 at 12:38am BST

I think he deserves you to cut him some slack...

Posted by: chenier1 on Wednesday, 21 July 2010 at 12:38am

Yes, I see. Thank you for helping me with that.

(It is the term 'practicing homosexual' that makes me see red -- especially the 'practicing'.) I can see that matters less than all you pointed out that he has done for us.

Posted by Pantycelyn at Wednesday, 21 July 2010 at 5:51pm BST
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