Friday, April 23, 2010

Unequal Equals: Homosexuals, ‘Christian Exceptionality’, and the Law

If x = y, then y = x. It’s a law of logic. It’s universal. And yet an exception has been unearthed by no lesser personages than Lord Carey of Clifton, the 103rd Archbishop of Canterbury, and Andrea Williams, director of the Christian Legal Centre. It transpires that, if I am a christian and you are a homosexual, then my right to manifest my faith entails my right to deny you of your rights (to access information and services, for instance), and any attempt to deny me of my right to deny you of your rights constitutes a denial of my rights. In other words, my rights are not equal to your rights unless I am allowed to make your rights unequal to my rights. Or, more blatantly, if I am equal to you, then you are unequal to me. If x = y, then yx.

Laid bare, such “‘reasoning’” (to borrow the archbishop’s punctuation) doesn’t deserve a second thought. However, Carey made his case before the Court of Appeal (submission) and Williams made hers on BBC Radio 4’s Today program (15 April 2010, 8:39–8:45). Melanie Phillips, columnist with the Daily Telegraph, has warmed to the issue as well (column), as have others. So, how has such ‘reasoning’ managed to masquerade reasoning?

Carey, Williams, Phillips and others have most recently been goaded into action by the perceived injustice suffered by a psychosexual counsellor. Gary McFarlane was dismissed for refusing to counsel homosexuals, even though his employers’ equal opportunities policy stated that “It is not appropriate for the therapist to impose a particular set of standards, values or ideals upon clients” and that “The therapist must ... avoid discrimination, for example on grounds of religion, race, gender, age, beliefs, sexual orientation, disability” (emplaw). Given that McFarlane wanted to deny services on the basis of sexual orientation, the breach of the policy is clear. So, again, how has such ‘reasoning’ managed to masquerade reasoning?

The crucial fact is that McFarlane is a christian and he believes that his religion does not merely classify homosexuality as sin but also requires him not to provide homosexuals with his professional services. By preventing him from denying his services in this way, his employers were, it was argued, denying him of the right to manifest religion, a right guaranteed under the European Convention on Human rights (Article 9.1). The decision went against him (for sound reasons, emplaw) but is now itself under appeal. And this is where Carey and Williams come in. Carey wishes a specially constituted court to hear the case, one attuned to christian values, one whose members do not have a record of findings against christian values. Both further criticise judges for elaborating a new doctrine according to which “homosexual rights trump christian rights” (Williams) and thus entering the legislative domain that belongs only to Parliament. Both see the beginnings of a society in which christians are barred, because of their beliefs, from participation in “normal things of life” (Williams), it being “of course, but a short step from the dismissal of a sincere Christian from employment to a ‘religious bar’ to any employment by Christians” (Carey). Both are wrong.

Their case was quietly and comfortably demolished by Williams’ cointerviewee on the Today program, barrister Dinah Rose (link). To manifest one’s religion is a qualified right: the manifestation is permitted only if it does not impinge on others’ rights (Article 9.2). McFarlane’s treatment of homosexuals is not a legally sanctioned manifestation of his religion as it denies them access to information and services. So, the judges have merely upheld the law, not created it, nor did they “set aside the human Rights Convention” (Phillips). Christians are not subject to a ‘religious bar’: there is a difference between beliefs and behaviour, and beliefs about what is sin do not oblige discrimination. And if courts may be specially constituted in ways pleasing to christians, should we not also have courts specially constituted in ways pleasing to homosexuals? Or maybe we should just stick with ‘all equal before the law’.

So, what is sought here is not christian equality, but ‘christian exceptionality’, the entrenching of inequality in favour of christians. I’ll leave to a later posting why the assertion that we are a traditionally christian nation following a judeo-christian ethic is both wrong and irrelevant as a defence of christian exceptionality. Here, I wish to remain on the topic of how unacceptable the demands of christian exceptionality are. To do so, it is helpful to consider jews instead of homosexuals (as homosexuals are a group whose equality within society is a very recent advance, whereas jewish equality has a longer, if very maculate, history). An instructive incident comes from the life of Pope Pius XII, when he was merely Eugenio Pacelli, secretary in the Department of Extraordinary Affairs (Hitler’s Pope, pages 69–71).

In 1917, towards the end of the First World War, Pacelli received a request from German jewry to assist in lifting an Italian embargo that affected palms needed for a religious rite. Pacelli wrote to his superior that to accede “would be to give the Jews special assistance ... in a positive and direct way to assist them in the exercise of their Jewish cult”, making sure to delay processing of the Germans’ request (“I entirely approve,” responded his superior). Discussing this incident, John Cornwell writes: “Some Catholic canonists would defend his action to this day, arguing that he was under an actual obligation not to assist non-Christians in the practice of their religion”. In other words, McFarlane’s defence is identical to that of Pius XII: for both, their christian values lead them believe themselves obliged to deny services to particular groups.

If Pacelli, the psychosexual counsellor, were dismissed for refusing his services to jews, that is, for “discrimination ... on grounds of religion, race, gender, age, beliefs, sexual orientation, disability”, would the Christian Legal Centre have complained that jews’ rights had trumped christians’? Or would an ex-Archbishop of Canterbury, “his heart in anguish”, have decried that those striving for “the highest development of human spirituality” should be “but a short step from ... a ‘religious bar’ to any employment”? Would newspaper columnists, inspired by his example, “Thank God for the one man who has the courage to stand up to our ruling elite’s assault on Christianity”?

If x = y, then y = x. The equality of homosexuals cannot be less than the equality of jews and the equality of christians cannot consist in the denial of the equality of others. Equality is equal for all and religious rights cannot demand the denial of the rights of others.