Is religious freedom threatened by gay rights? Stephen Law steals my thunder

I was in the middle of preparing a long post about today's European Court decisions on the four Christians that had appealed their Supreme Court dismissals for violations of discrimination laws, when up popped an article by philosopher, Stephen Law who encapsulated everything I wanted to say (and very likely a fair bit more).

It is a weighty piece, but worth the effort. His thoughts on the subject is framed in a wider context than I would have used, but it is all the more powerful because of it. Below is a selection of what I feel are the most salient points, but you should really sit down with a cuppa and read the article in its entirety.

The results, by the way were that three of the four cases were dismissed, the fourth being upheld for BA employee, Nadia Eweida.

Recent examples involve a case in which the religious owners of a hotel refused, on religious grounds, to give a gay couple a shared bedroom, and a case in which prospective foster parents who wanted to able to teach children in their care their religious view on the wrongness of same sex relationships claimed their religious freedom would be unjustifiably curtailed were they not permitted to foster for that reason.

In both cases, it was claimed that religious rights and freedoms were being trampled – that the rights of gay people were “trumping” the rights of the religious.

Conscientious objection

Of course, we do, rightly, allow for some exemptions to the law, and to professional duties, on the basis of, for example, conscientious objection. We believe pacifists deeply committed to non-violence should not be forced to take up arms. We do not require NHS doctors who have a deep moral objection to abortion to perform abortions. They are exempt that duty.

Exactly when someone should be exempt on the basis of conscientious objection is, however, a hard question to answer. On the one hand, we can’t allow that just any appeal to conscience provides grounds for exemption. For then the law becomes unworkable. I could break any law I liked and claim immunity on the grounds that my conscience required me to do so. On the other hand, we don’t want to say that in no case can a claim of conscientious objection constitute good grounds for exemption. So we need to develop criteria that determine when it’s right to exempt someone on the basis of conscientious objection, and when it is not.

What sort of criteria ought we to apply? As I say, that is a hard and complex issue. Many factors should probably be taken into account, including: (i) is the objection deeply felt and can the objector give a coherent account of it? and: (ii) if we allow for objection, or many such objections, will we infringe the rights of others, and/or is allowing the objection likely to have a serious negative impact on the quality of the lives of others?

While many factors probably need to be factored in when weighing up claims of conscientious objection, I am not persuaded that having a specifically religious objection should carry any additional weight.

Yes, I believe a Roman Catholic doctor who has a deep religious objection to abortion ought not to be required to perform an abortion. But that is because I believe no doctor who has a very deeply held moral conviction that abortion is wrong should be required to perform one.

Are we to say that a Roman Catholic doctor who morally objects to abortion should be exempt such duties, but not a doctor with an equally firm and considered objection to abortion who happens not to be religious? If these two doctors have an equal claim to be exempt, then it’s not the former doctor’s religiosity that’s doing the justificatory work. On the other hand, if we exempt the Catholic doctor but not an atheist doctor, then what justifies us in treating them differently? Why should the conscientious objections of the religious carry more weight than those of the rest of us? Personally, I cannot see any justification for giving the religious conscience greater weight.

Are we are going to accept that hoteliers with deep-seated objections to same sex relationships do not have the right to refuse gay couples a room, unless, that is, their objections are religious? And if the addition of a religious dimension to the objection is sufficient to exempt those hoteliers the law, what about hoteliers with deep-seated religious objections to the mixing of the races? Do they, by virtue of the religious character of their objection, thereby earn the right to refuse mixed race couples a room?

I cannot see that the addition of a specifically religious dimension to the conscientious objection of hoteliers who object to making rooms available to gay couples or mixed race couples requires us to take their claim to be exempt from anti-discrimination laws any more seriously than if they objected on non-religious grounds.

An hotelier who refuses a mixed race couple a room is a bigot. They will rightly fall foul of the law. It seems to me that, if an hotelier should turn out to be, not just a bigot, but a religious bigot – a member of the Dutch Reformed Church in South Africa, for example, whose views on racial mixing are underpinned by theology – that would not lend any further credence to the thought that the law should not apply to them. It seems to me that the same moral applies in the case of hoteliers who want to refuse gay couples a room.

Incidentally, it became clear during the conference that most of who believed that hoteliers with specifically religious objections to giving a gay couple a shared bedroom ought, for that reason, to be exempt legislation requiring them to do so were far less sympathetic to the view that hoteliers with specifically religious objections to giving a mixed race couple a shared bedroom ought, for that reason, to be exempt legislation requiring them to do. Such individuals have some explaining to do. They need to explain (i) why the addition of a religious dimension to the former hoteliers’ objections qualifies them for exemption, unlike those with non-religious objections. They also need to explain (ii) why these grounds for exemption do not then extend to the case of hoteliers objecting on religious grounds to giving a mixed race couple a room.

It was suggested during the conference that there is a difference between these two sets of hoteliers that explains why those refusing on religious grounds a same sex couple a shared room should be exempt equal rights legislation, but not those refusing on religious grounds a mixed race couple a shared room. The suggestion was that what the former hoteliers are objecting to is behavior. These hoteliers need not refuse individual gay people single rooms. They just refuse gay couples shared rooms because of the sexual activity those couples might then engage in. It is that sexual activity that these hoteliers find morally repugnant.

However, we might ask: why, exactly, does the fact that religious hoteliers want to discriminate against individuals on the basis of their behavior, rather than some other characteristic, mean that we should be prepared to allow such discrimination to take place? Should we, then, allow Christian hoteliers to refuse Muslims bedrooms on the grounds that, while Muslims are fine in the lobby, they are likely to pray towards Mecca in the privacy of their bedrooms, and such non-Christian religious observance is not something the Christian hoteliers believe they should facilitate.

But in any case, even if we did permit such discrimination against behavior, it is precisely behavior that I am supposing the hoteliers refusing a mixed race couple a room are objecting to. They don’t turn away anyone on the basis of the colour of their skin. Rather, these hoteliers will refuse a mixed race couple a room because of the behavior they think that couple is likely to engage in while there. Sexual activity between people of different races might occur, and it is that behavior that the hoteliers find morally repugnant. So, again, why should we exempt the religious hoteliers wanting to turn away gay couples for fear of what they might do, but not these hoteliers wanting to turn away mixed race couples for fear of what they might do?

If that is not enough for you, below I proffer the links I collected for the research onto my own aborted effort.

Damn you, brilliant philosophers, stealing my thunder!

• British Airways Christian employee Nadia Eweida wins case
• Christian discrimination claims heard by Europe court
• The BA Christian case was judged rightly, and a true test of tolerance
• Balancing Christian and gay rights isn't easy - give Strasbourg some credit
• London Green MEP welcomes LGBT anti-discrimination court ruling
• Ruling on Christian's right to wear cross 'does not trump other human rights'
• Christians should be able to wear religious symbols, Archbishop of York says
• Eric Pickles: Christian cases 'should not go to Strasbourg'
• A new intolerance is nudging faith aside