Andy Walton looks at whether there is a "Religious Right" emerging in Britain
In latest example, female social studies teacher faces trial
Equality, Freedom, and Religion
10th July 2012
Why did you feel the need to write a book on equality, freedom, and religion at the moment?
Over the last few years, it has become quite clear that notions of equality are being upheld over claims of freedom. Notions that one shouldn’t discriminate against whatever category of person you come up with – on grounds of gender, sexual orientation, race – are obviously very important. We believe people should be treated equally. But in the courts, and elsewhere, gradually there has come the idea that equality trumps freedom.
This is even coming from Acts of Parliament I think – there aren’t exemptions built in. Take, for instance, the Race Relations Act 1976. That obviously trumps everything – you are not allowed to discriminate on grounds of race. That seems quite right.
But even there religion has in fact come into conflict with that, in 2009, in one of the first cases before the UK Supreme Court, about the Jewish Free School. The court said that the Jewish definition of who counts as a Jew – a very traditional thing, based on matrimonial descent – in effect was racist. It cut across the Race Relations Act, so was direct discrimination and could not be allowed. Therefore the school had to alter their admissions procedures. As Lord Rodger, one of the Justices, said, in future Jewish schools could not on their own understanding only admit Jewish children. He said he felt something had gone wrong.
I think that’s a good example. You’d have thought that to convict the Jews of racial discrimination, when they’re one of the groups you might want to protect from discrimination, seems rather odd. It illustrates a tendency in the courts to interfere with what I think are theological issues. They started off the case by quoting Deuteronomy, and I think there’s something going wrong when they’re getting involved in that kind of Biblical exegesis.
Let’s pick up on one or two of those issues. In the book you say that it’s quite clear that religion should not be given carte blanche in these issues. It can’t simply be either exempt from legislation, nor should religious groups be able to do what they want to simply because they can claim religious motivation. Nor, at the other extreme, is it acceptable for the state to rule out of court all forms of religious practice and only promote religious belief. That leaves us in an inevitably messy grey area. How do we navigate that grey area?
Well, certainly not all religion is good religion. At the extreme, religion can enjoin human sacrifice, and no democratic society can allow that. But I do feel a democratic society has to take religion very seriously, because religion encapsulates what we as individuals think is most important about human life. If we can’t live and practice what we think is most important and speak up for it then democracy is being throttled. We can’t then contribute to discussions about what is the common good.
I take as an example conscientious objection during war, which through the last century has been accepted in this country. However much we may disagree with people who won’t fight for their country, and I’m not a pacifist, I do respect their conscience. I would not want to force someone to kill if they felt it was absolutely wrong. That’s an example of a situation where people are being asked to go against something they feel is deeply wrong, and shouldn’t be forced to do so.
I wanted to find a principle at work here, but I don’t think there is an overall principle, because it involves a balance in every case. You have to look at it case by case – looking at whether there is a substantial burden on religious people, and at the wider interest. But there isn’t a balance at the moment.
Claims to equality, to not be discriminated against, currently trump religion. People forget that the right not to be discriminated against on religious grounds is itself a very firm right. The right to religious freedom is in all charters of human rights. So I don’t think enough weight is being given to religion. But it is always a balance.
I take your point that there is no silver bullet or very clear line. But even when you’re considering issues on a case by case basis you still need some lodestar, some principles that can at least guide your adjudications, don’t you? What are they?
This again is where I think the courts are beginning to go wrong in this country, in that they’re repudiating our Christian heritage. They’re pretending that they can stand somewhere neutral.
In the recent case about prayer in Bideford, where the judge ruled on very narrow grounds that the council could not have prayers as part of their meeting, he said at one point that it was no part of the court’s role to judge whether in fact having prayer at the start of the meeting was conducive to the conduct of business. But even in that, he was assuming that therefore you don’t have prayer, because you can’t prove it was conducive. I found that very interesting. He was taking a very secular, anti-religious view for granted. Prayers have been said in Bideford at the start of meetings since the reign of Elizabeth I, and I would have thought therefore that the default position was that you have prayers – that was their tradition, that was their heritage, and the councillors voted for it. They believed it was conducive to business. But the judge started from the assumption that it isn’t.
So when you ask what our lodestar is, I’m quite willing to have a discussion about what is conducive to human flourishing, to the human good. But I think that traditional Christian notions of that are absolutely implicit, and sometimes explicit, in the law in this country, and can’t be set aside. That’s our starting point in this country. I’m not saying that you can’t object to them, or that you can’t have a democratic argument about them. But that’s the default position, not an aggressive secularist one.
People disagree all the time about things, in all walks of life, and most of the time we deal with it by trying to accommodate one another. How can this be done in these sorts of cases? And why have increasing numbers of cases involving religious freedoms come to the courts?
The watchword in my book is ‘reasonable accommodation’. I think that’s what is necessary. There ought to be a reasonable accommodation when there’s a conflict of rights. If you believe there is no hierarchy of rights then you’ve got to not let one trump another. You could in fact argue that religious freedom is of particular importance and particularly related to our democratic life, and I know a lot of Americans would argue that. But let’s say for the moment there is no hierarchy of rights but that religious freedom and following one’s conscience is at least as important as other things.
In many recent cases, the trouble is that the law has changed in a more secular direction, and that means a lot of religious believers get caught. They suddenly find they’re not allowed to do what they have been doing. I think the way to deal with that is to be sympathetic to them and accommodate them.
Let’s take the civil registrar case, which is going to the European Court of Human Rights, Lillian Ladele in Islington. I think that’s a fairly classic case, because the law changed. She’s not being deliberately awkward. She suddenly found the job she’d been doing for many years was changed, so that she had to do something that she found personally repugnant.
Of course in all these issues the important thing isn’t whether we agree with her or not. Religious freedom is particularly important when you are faced with people you disagree with. It’s when people disagree, like conscientious objection at the time of war, that our belief in freedom is really tested.
Ms Ladele felt that she couldn’t take civil partnership ceremonies. Islington Council could easily have said “alright, we have plenty of marriage ceremonies going on at the same time, so we’ll let your colleagues do it”. But they didn’t want to, they wanted to make a point, to say that discrimination on the grounds of sexual orientation is so repugnant that they will not allow it. But, in so doing, I think they were discriminating on grounds of religion.
You had two things that ought to have been balanced, and any kind of reasonable accommodation could have found a way to do that. If she was the only civil registrar, so without her they could not conduct civil partnership ceremonies, then it would have been a very different situation. But in a large borough with people who are willing to conduct them it was very easy to deal with her in a sympathetic way. Yet the Council weren’t willing to. I suppose she had the choice of either doing something she didn’t want to, or giving up her job and keeping quiet, or going to court about it. I don’t see any reason why she shouldn’t have gone to court.
Would it have made a difference if she were applying for the job now? As you say, the situation was that she had been working and then the occupational goalposts were changed around her. Would it make a difference if she were now applying to work as a registrar and made it clear that she wasn’t prepared to conduct same-sex partnerships?
Yes, and I think she’d have to make it clear, and I think that it would be up to them whether they appointed her or not. I suppose it would depend how much of an issue that was in the area. But certainly I think you are in a different situation.
I was a magistrate for many years, and you could argue that sometimes you are in an official capacity where you have to administer laws you don’t personally approve of. Magistrates don’t approve of every law they administer, obviously, but in a democratic country we agree about the laws and we administer them, whether we think they’re harsh or lenient or whatever. And you couldn’t operate the system in any other way.
But I am worried about the idea that you take on a job by putting aside your conscience, and you can’t have the job if you’ve got a conscience. The civil registrar case is one, but another issue is medical ethics. I was lecturing recently in a Catholic public school, where people were about to apply to do medicine in Oxford. I was quite concerned with how worried they were that they were going, without any choice, to get sucked into practices that they morally disapproved of. They were seriously wondering whether they ought to enter medicine or not. The message they were getting was that if you’ve got a conscience you shouldn’t be a doctor. I find that worrying. The whole issue of abortion, and of people having to supervise abortions even if they’re not taking part in them themselves, highlights that. It’s almost the case that if you’re going into medicine nowadays you’re going to get involved with procedures you don’t like.
There is still a case for saying we ought to be much more willing to safeguard conscience as a society than we are because, actually, people with conscience are valuable. I actually value pacifists who are saying killing is wrong. I’d much prefer to have a few of those around than people who actually think that human life was expendable, and that you can sacrifice ten for a hundred.
One very widespread argument is that we’re all equal under the law, so religious people shouldn’t be exempt from it or be able to mould it around their own concerns. Take the case of a Muslim who applies for a job in a supermarket but feels that his conscience can’t allow him to handle alcohol, so demands an exemption from those occupational requirements on grounds of his religious conscience. Where would you stand on a case like that, and accordingly where is the line between drawn between that and Lillian Ladele?
I would be very sympathetic to someone who didn’t want to serve alcohol, but it depends what the job involves. If they’re applying for a job as a bartender obviously there’s a deep contradiction there. If it’s a supermarket, only a small part of whose business is alcohol, other people can deal with that. I suppose it might be difficult at the checkout, so they can’t be too rigid about it – they might sometimes have to check out a bottle of wine amongst a lot of other things. But I’d hope that the supermarket can be sensitive, so not put them in charge of the wine department, for example. Again, I think it’s a matter of reasonable accommodation.
The much more important issue of course when you’re dealing with Islam, and when you’re saying one law applies to everybody, is when you get onto Sharia law. That’s what frightens people – when you have enclaves of people operating according to a different law, particular in family law. I strongly think there should be one law for everybody.
Too often people mean by religion ‘Islam’, and then think we mustn’t pick Mulsims out, so they attack everybody. But different religions enjoin different things. For instance, I’d be dead against polygamy and just because it’s enjoined by certain brands of Islam I’m not going to say we should accommodate it. I’m sure we shouldn’t.
What are the grounds for your sureness there?
My views about what is conducive to human good and harm, to human flourishing. They may be infused by Christian views about what is good, but I am also quite inclined towards a natural law view, talking about a lot of these things independently of an appeal to religion. In all of these kinds of things I certainly don’t want to say “it says in Deuteronomy such and such, therefore we ought to do it”, or “the authority of the Church is, therefore we ought to do it”. I’d much prefer to point to issues about how women are treated, about monogamy and the importance of family life at the basis of our society and so on, which I think can be talked about fairly reasonably between many people, whatever their views. It’s that kind of ground I’d want to go on.
But I’d agree that our starting point is very often our Christian heritage, and that suffuses a lot of what we’re saying. Indeed, I’m not even sure you can justify human rights when you subtract them from a religious background. Why are humans more important than non-human animals?
But isn’t the problem that the kind of common ground on which all reasonable people can stand, and from which they can adjudicate issues like polygamy, is diminishing? You and I might agree on what makes for human flourishing, and you and I would do so in a way that is informed by our Christian faith and the (vaguely) Christian culture in which we were raised and educated. But it seems to me that there is a radical difference of opinion, what Charles Taylor has called ‘deep diversity’, among reasonable people on what does make for human flourishing. You’ve mentioned natural law, but that is not now so self-evident a position from which to adjudicate a lot of these issues, is it?
No, and in a democratic society you have different people bringing forward different views, and we have to deicide. All I’m arguing is that the minority who lose sometimes ought to be accommodated, that they ought not be made to do things that they find repugnant. Your very mention of the word diversity suggests that we ought to some extent to respect diversity, to not impose an orthodoxy. My feeling is that all too often in the courts and elsewhere there is now a secular orthodoxy being imposed.
Often the courts are narrowing freedom of religion to freedom of worship, saying of course there is freedom of religion because we’re not stopping you worshipping (though actually very often they do because they say you have got to work on Sundays). But the European Court says you’ve got freedom of religion because you’ve got freedom of contract, because you can give up your job. But I don’t think the freedom to be unemployed is a great freedom.
The British courts tend to talk about what is a core belief. In the Lillian Ladele case, she was told that marriage is not a core belief for a Christian. I find that totally outrageous from a theological point of view, because the whole relationship between Christ and the church is modelled in the New Testament on the relationship between man and wife, so it’s very central. But really the issue is that it’s not for the court to say what is and isn’t a core belief.
As I said, they also did that with Judaism. They were starting to say who is and isn’t to count as a Jew, and I think it was rather evident that their notions were formed by Protestantism rather than by any kind of Jewish tradition. So they were imposing something, which was wrong.
This is a real catch 22, isn’t it? I entirely agree that courts are not theological institutions, so are not equipped to adjudicate with any degree of coherence or certainty on what is or isn’t a core religious belief. But having said that, when Lillian Ladele comes to court, or issues of jewellery...
Yes, wearing the cross is another good example. They say that it isn’t an obligation to wear a cross as a Christian, and of course it isn’t. But I think you’re in a slightly different realm if you’re told you mustn’t wear it. It isn’t an obligation for a Catholic to go to mass on Wednesdays, but if you told a Catholic ”we’re not allowing you to go to mass”, I think you’re in a different position.
The question I was getting at, though, is how can you avoid the situation whereby courts are called upon to adjudicate what is and isn’t core? If these cases come to court, it seems they can’t help getting involved in deciding that.
Well, one thing is that they’re being too narrow in deciding what is core. This is a difficult area. At one extreme (which I think the Canadian Supreme Court is getting near to) you could say that if somebody thinks it is core then it is – if it is a sincere belief it ought to be respected. I think there are dangers in saying that we will allow you to do it just because you think it’s important. That just means that anybody can do anything. But I do think that the fact that someone thinks something is important, the fact they think it is intrinsic to their religion, is a very important feature of the case. A court must be very careful before riding roughshod over it. I would want to accommodate it, if I can, and I don’t think the courts do. I think that they just say “it is discrimination so we won’t have it”, so they’re not sensitive enough to what’s going on. But in the end obviously you have to decide what the law will be, and it will have to rule some things out, including some religiously-based behaviour. I fully accept that.
So, your argument is that the default position should be one of freedom and accommodation, which you then remove in particular cases, rather than how you see the current situation, whereby the default position is a kind of centrally imposed equality, with freedoms sometimes granted?
Actually, this is a very deep philosophical issue, because I think we’re free unless the government restricts us. But there is a strain of thought which sees human rights as things which are graciously granted by government. Perhaps I’m doing them an injustice, but I think that’s more the French model – the government allows and sets up rights. Indeed, in a sense, charters of rights do this. They’re set by governments or international organisations and they more or less say “these are your rights, this is what you can have”. That’s very much against the English common law tradition, which says we’re free, other things being equal, so a right isn’t something I can be granted by a government.
This does spill over, in France, into the religious side, because they’re deciding what people can and can’t wear in public places. Muslims are therefore not allowed to have certain kinds of dress in the public square. The assumption is that you’re not free in the public square unless we think there’s good reason for you to be, so we decide what you wear. That is a very different attitude.
Where do you think we are heading? We are inevitably still going to be having discussions of this nature in ten year’s time. It seems clear that the trajectory of travel in the last decade or so has been toward a greater degree of litigiousness, a greater degree of tension, an unwillingness to settle these matters through intelligent discussion by reasonable adults around the table, and, at the same time, an increasing diversity. Is it your view that we are going to see a greater degree of social fragmentation along these lines, coupled with a more muscular secularism that tries to stamp down on that diversity?
I do see a more muscular secularism in some quarters, of course. One issue which I think has changed recently is the whole issue of human rights, the way that’s been brought into British law since 1997, and the setting up of the UK Supreme Court. That changes the dynamics of things. They’re not part of the legislature, but are holding it to account by external standards. And people see that, so think “we may not get our way in Parliament, but we can get our way through the law”. This is already happening in the United States, where secularists see that they can sometimes win in the courts, even up to the US Supreme Court, when they haven’t a hope in Congress.
I think you can see the UK getting more secular in the attitude of some judges. I was very concerned recently about the remarks of Lord Justice Laws, who said that religion is subjective and irrational, isn’t the kind of thing that can be proved in the public sphere, and so on. That has already been taken up in several recent judgements. What he wrote – saying that religion isn’t rational – was, I think, speaking as a philosopher of religion, utterly unacceptable. Indeed many atheists wouldn’t say that, because they’d say that we have good reasons for denying these claims – they’re the kind of claims that are worthy of discussion, and are false. But he was just sweeping it aside as something subjective. That is a very contentious position, and it rather undercuts the whole question of religion being able to operate in public life and take part in rational argument. It depends a lot on outmoded philosophy of science, with people like A.J. Ayer, who said that religion was meaningless. It doesn’t even stand up in physics nowadays, because physics has to deal with a lot of entities that you can’t actually prove by experience.
I get very concerned when that’s just trotted out in a couple of sentences in the court, and then used in the adjudication of cases. It isn’t as simple as that. I think religious people have every right to put their case rationally and to have it heard rationally. I hope in a democratic society we can each respect the other’s point of view and try to accommodate it. I don’t want to coerce atheists; I want to make room for them. But I think they have to do the same for Christians.
Roger Trigg’s Equality, Freedom, and Religion is published by Oxford University Press.