Wednesday, 19 January 2011

Christians, law and public opinion

The case of the Christian hotel owners found by a court to have acted unlawfully when they refused a double room to two homosexual men raises two interesting points.

According to the report on the BBC news website:
In his ruling, Judge Rutherford said that, in the past 50 years, social attitudes in Britain had changed and it was inevitable that laws would "cut across" some people's beliefs.

"I am quite satisfied as to the genuineness of the defendants' beliefs and it is, I have no doubt, one which others also hold," he added.

"It is a very clear example of how social attitudes have changed over the years for it is not so very long ago that these beliefs of the defendants would have been those accepted as normal by society at large.

"Now it is the other way around."
There is implicit in Judge Rutherford's remarks the understanding that the law should be determined by changes in social attitudes. This stands in a very sharp contrast to the words of Pope Benedict XVI when he spoke in Westminster Hall:
If the moral principles underpinning the democratic process are themselves determined by nothing more solid than social consensus, then the fragility of the process becomes all too evident - herein lies the real challenge for democracy.
It can be legitimate that the law should change as social attitudes change - but not simply on the basis of the change in attitudes themselves. If the change in social attitude is not founded in deeper ethical principles, and those ethical principles therefore found the change in law that follows, then Pope Benedict's critique applies with full force. For Judge Rutherford to make reference to changing social attitudes in his judgement, which is a judgement about what is or is not permissible under the law, is therefore quite inappropriate.

The comment on the judgement from the Equality and Human Rights Commission also highlights another  point:
John Wadham, Group Director, Legal, at the Equality and Human Rights Commission, said:

“The right of an individual to practice their religion and live out their beliefs is one of the most fundamental rights a person can have, but so is the right not to be turned away by a hotel just because you are gay.

“The law works both ways. Hotel owners would similarly not be able to turn away people whose religious beliefs they disagreed with.

“When Mr and Mrs Bull chose to open their home as a hotel their private home became a commercial enterprise. This decision means that community standards, not private ones, must be upheld.”
It is difficult to make any sense of the first paragraph of John Wadham's comment, which suggests that the right of an individual to practice a religion and to live out their beliefs can be considered as a kind of equivalent level of right as that now existing under UK law with regard to the provision of services for gay people. The right to practice a religion and live out beliefs is recognised as a universal right by the UN declaration of human rights; the rights considered to belong to gay people, as gay people, are going to be in some way derivative from such universal rights and not equivalent.

The statement from the Equality and Human Rights Commission does report Judge Rutherford's implicit reference to a provision of the UN Declaration which allows for limitation of the rights contained in the Declaration:
In the ruling the judge said the right of the defendants to manifest their religion is not absolute and 'can be limited to protect the rights and freedoms of the claimants'. He described the Sexual Orientation Regulations as a 'necessary and proportionate intervention by the state to protect the rights of others'.
The reference is to article 29(2) of the UN Declaration (my italics added):
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
If Judge Rutherford is to give consideration to one aspect of this provision - recognition and security of the rights of another - surely he should also have given consideration to the other aspects too, notably that with regard to the "general welfare in a democratic society". Can we really say that the existence of a plurality of hotel accomodation providers, some living by their Christian principles and operating their enterprises accordingly, is contrary to "the general welfare in a democratic society"? And does such a plurality really infringe the rights and freedoms of others?

Another point that is interesting is John Wadham's statement that "community standards, not private ones, must be upheld". One can perhaps think that the term "community standards" is being used straightforwardly as a synonym for "the law"; or one might see this choice of term as reflecting again the responsiveness of the law to public opinion. But more fundamental, in the context of the practice of religious beliefs in the public sphere (which is what is at stake here), is the opposition set up between "community standards" and "private standards", and the idea that it is the "community standards" which trump the "private standards". John Wadham should not be setting the debate up as being a question of "whose standards" apply; he should be talking simply about whether or not the law is upheld. Once again the words of Pope Benedict XVI in Westminster Hall are relevant:
There are those who would advocate that the voice of religion be silenced, or at least relegated to the purely private sphere.... And there are those who argue – paradoxically with the intention of eliminating discrimination – that Christians in public roles should be required at times to act against their conscience. These are worrying signs of a failure to appreciate not only the rights of believers to freedom of conscience and freedom of religion, but also the legitimate role of religion in the public square.
So, whilst one might accept that Judge Rutherford handed down a judgement that is correct in terms of the law as it is framed in this country, there remains much in the judgement, and in the comment made upon it by the principle sponsors of the legal case, that is cause for concern.

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