According to Supreme Court judge, Lady Hale, the law has yet to find the right balance between accommodating people’s beliefs and avoiding anti-gay discrimination.
Her remarks, made during a lecture at the Law Society of Ireland, take a position common amongst judges, politicians, activists and scholars seeking to find a midway point between privileging beliefs and privileging non-discrimination. But in suggesting a compromise that gives some religious folk the right to “conscientiously object”, another, quite different, settlement is ignored. This is one which rejects a legal entitlement to discriminate, while recognising that resistance and dissent within workplaces, including government ones, can be valuable.
Christian claims to be allowed to lawfully discriminate against lesbians and gay men have emerged globally. In the UK, the best known case is that of Islington registrar Lillian Ladele who took her case as far as the European Court of Human Rights arguing for the right to refuse to perform, or even register, lesbian and gay civil partnerships. Other British cases have involved guesthouse owners, marriage guidance counsellors, adoption providers and foster parents – arguing that their deeply held Christian beliefs should protect them from the reach of (gay) equality law.
While many secular liberals applaud the court judgments, which have almost unanimously refused to exempt religious objectors from treating lesbians and gay men equally, more radical perspectives have been mixed. For some, the concerns of “homonormativity” – of mainstream middle-class life underlying many gay rights claims – generate indifference. Others see conservative Christians as rightfully entitled to express deeply held views without penalty even if this means refusing to do what they’re told. Indeed, the demand on state employees and others to comply with their employers’ instructions seems hard to recognise as the rallying cry of a progressive state, even if equality is involved.
But does this mean anti-gay refusal should be accommodated, particularly once we bear in mind that equality law not only protects religious beliefs but “philosophical” ones as well? Lady Hale may wish to see more recognition of religious beliefs and conscience, but exemptions here will also apply to “philosophical”-based objections. This means secular conservatives and radicals can also, at least theoretically, try to argue that their deeply held beliefs include a principled rejection to providing services that support gay liberal life.
My argument isn’t for religious beliefs to be given more weight than “philosophical” ones. Rather, since contemporary British anti-discrimination law is minimising the distinction, we need to ask how belief-based refusals, in general, to provide gay people with a service should be regarded.
Many argue it’s absurd for British law to legislate gay equality and then provide an exception for those whose objections are grounded in belief – what other reasons for demanding an exception are likely to be articulated? But – and this is key – state law’s refusal to accommodate discrimination isn’t the final word. If we adopt a legal pluralist perspective, multiple legal and normative orders can be found co-existing within the same social space. This means the religious laws animating conservative Christian refusal occupy, and confront secular state law from, a shared terrain.
Should state law then “recognise” religious law, in the sense of treating it as a legitimate basis for equality exemptions? Conventionally, such recognition is seen as deference to religious authority. But we can also see it as asserting a mono-legal mind-set in which state law takes upon itself the authority (and responsibility) for establishing the terms and provisions for law-animating action. Creating a situation where state law is the only law in town, enormous pressure is placed on the state’s legal infrastructure to recognise religious refusal – since if state law doesn’t who or what can?
There is an alternative. State law can refuse to accommodate religious motivations for discriminatory action. At the same time, we – a wider public – can stand back from state law to recognise that other, competing, legal and normative orders also shape what people do. Public bodies, such as local councils, become some of the sites where these conflicts are played out.
Conflict between people over their views and beliefs isn’t always productive. It can make public action impossible, exacerbate exclusionary and hostile organisational cultures, and generally make people dread going to work. At the same time, political, judicial and managerial demands that workers do what they’re told, or face charges of insubordination, treat workers like machines, and – at considerable cost – disregard the vibrant political character of workplace struggles. The challenge is to find institutional ways of supporting conflict, involving other modes of performance. Where can we look for examples of how to do dissent and disagreement in constructive, stimulating, even pleasurable, ways?
This post was first published on Oxford Human Rights Hub: http://ohrh.law.ox.ac.uk/religious-anti-gay-refusal-valuing-dissent-without-making-it-lawful/