Freedom of Religion Fading in Great Britain

There has been a great deal written about the report on Sexual Orientation Regulations (SORs) that have been produced by a joint committee of the British Parliament recently. (For instance, see here, here, here, here, and here.) I have no doubt that the proposed regulations, or something very much like them, are in keeping with general trends throughout the European Union, which means that activist groups and possibly even judges will soon be quoting them here as a model for anti-discrimination legislation. So I took a look at the report, and found that if anything it may be even worse than it’s been portrayed. Here are some excerpts from the section on “Freedom of Thought, Conscience, and Religion”:

31. The Consultation Paper recognised that there may be circumstances where the new regulations could have an impact on aspects of religious activity or practice in light of the doctrines of some faiths concerning sexual orientation and the beliefs of their followers. It therefore sought views on the areas where the proposed regulations might impede religious observance or practices that arise from the basic doctrines of a faith. The Government’s starting point was that any exceptions from the regulations for religious organisations would need to be clearly defined and should be limited to activities closely linked to religious observance or practices that arise from the basic doctrines of a faith. [Emphasis added]

For those who know the history of the treatment of religion in the Soviet Union, this is chilling. The Soviets had a clause in their constitution guaranteeing freedom of religion. The way they got around that was to define everything other than worship that took place in a church sanctuary to be only ancillary to religious freedom. Thus, any form of Christian education was subject to regulation that effectively eliminated it. Question: who is going to decide whether particular “practices” “arise from the basic doctrines of a faith”? Answer: the government that is enforcing these regulations.

32. The Government also recognised in its Consultation Paper that religious organisations have a role in providing various social or welfare services to the community. However, it said that it did not see a case for exempting such services provided by religious organisations from the general prohibition on sexual orientation discrimination. It was not proposing to exempt activities provided by an organisation related to religion or belief, or by a private individual with strongly held religious beliefs, where the sole or main purpose of the organisation offering the service is commercial. It also proposed to apply the prohibition to organisations contracted by a public authority to deliver a service on its behalf, including churches, charities or similar groups with a religious ethos.

And this whole paragraph is simply the logical conclusion of the first. The government enforces the regulations, and gets to decide, for instance, when an activity has as its “sole or main purpose” something ommercial. And that last sentence nicely encapsulates the old adage that who pays the piper calls the tune.

33. The first limb of Article 9(1) of the ECHR guarantees the right to freedom of thought, conscience and religion. This is an absolute right which cannot be subject to any limitation or restriction.

Which is another way of saying that the government can’t regulate what goes on inside each person’s head. That’s what passes for “human rights,” not to mention political humility, these days. Oh, and you can guess what comes next.

34. The right to manifest one’s religion or belief in practice is protected by the second limb of Article 9(1). This is a qualified right capable of limitation under Article 9(2), including for the protection of the rights of others.

35. The human rights issue which arises is whether Article 9 ECHR requires there to be an exemptions from the prohibitions on discrimination on grounds of sexual orientation, in order to protect freedom of conscience and belief, and, if so, what the scope of those exemptions should be.

The “Article 9 ECHR” referred to here is Article 9 of the European Convention on Human Rights, which states:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

So the question is this: which is more important: freedom of religious belief and practice, or non-discrimination (very broadly defined, as we’ll see) against gays. Or, put another way: what restrictions of freedom of religious practice can we get away with in order to insure that gays never, ever experience disapproval?

The next part of the report deals with the current regulations in Northern Ireland. Those include an exemption for religious organizations, and are characterized by the report thus:

37. The exemption applies to an organisation the purpose of which is to practice a religion or belief, to advance a religion or belief, to teach the practice or principles of a religion or belief, or to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief.

38. The exemption provides that nothing in the Regulations makes it unlawful for such an organisation to restrict, on grounds of sexual orientation: membership of the organisation; participation in activities undertaken by the organisation; the provision of goods, facilities and services in the course of such activities; or the use or disposal of premises owned or controlled by the organisation. Such restrictions are permitted only if imposed because it is necessary to comply with the doctrine of the organisation, or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

That’s fine as far as it goes (though it does seem to require that religious organizations make their beliefs regarding sexuality as explicit as possible to avoid the possibility of regulation). But:

39. The exemption does not apply to:

• an organisation whose sole or main purpose is commercial,
• bodies concerned with education, or
• organisations providing goods, facilities or services, or performing certain functions, on behalf of a public authority under the terms of a contract for provision of that kind. [Emphasis added.]

All three of those are problematic, and the second most of all. This is what I meant when I compared this to the Soviet model–you can practice your religion, but you can’t pass it along to your children (or at least not the parts that the government disapproves of). And what is the British Government’s view of this provision:

40. In the Government’s view, the concerns expressed about exemptions for religion in response to its consultation on the Northern Ireland Regulations have been addressed by the wording of this exemption which, it says, clearly protects the right to hold a religious belief and key doctrinal practices.

“Key doctrinal practices.” Care to guess what those might be? Guess away, because the report doesn’t define them, though clearly education isn’t one of them. The next part would be hilarious if it weren’t meant in deadly earnest:

41. In the debates on the Northern Ireland Regulations, opponents of the Regulations argued that the exemption for religious organisations is too narrow and that the Regulations interfere with religious freedom, because they require people to approve of or facilitate practices which their faith teaches them, or their conscience tells them, are contrary to the central tenets of their religion, or morally wrong. According to this view, the Regulations threaten to override the consciences of Christians and others who object to homosexual practice. A frequently cited example was that of a Christian proprietor of a bed and breakfast establishment, who would be forced, by the Regulations to rent out a double room to a homosexual couple, an act of facilitation of homosexual practice which would be “against his conscience”.

42. Others in the debate argued that the Regulations do not require anyone to approve of anything, they merely require the holders of religious beliefs about homosexuality to refrain from putting them into action in ways that have an adverse impact on other people.

Paragraph 42 doesn’t answer the argument presented in 41, it simply says, “tough.” I think it’s mighty noble of the government to allow me the freedom to believe what I want about homosexuality. But just try to take actions that might embody those beliefs and WHACK! This is meaningless gibberish–for the government to say your conscience is free, only you can’t act on it but instead have to do exactly the opposite of what your conscience tells you when you run afoul of the PC police is positively Orwellian.

So what’s the verdict on the Northern Ireland regs, which are being considered as a model for Great Britain as a whole:

44. In our view, some exemption from the Regulations is necessary in order to protect the right to freedom of conscience, religion and belief in Article 9 ECHR. Regulation 16 of the Northern Ireland Regulations ensures that nobody will be required to perform same-sex marriages, or to admit homosexual people to their religious organisations, or allow them to join in their activities or use their premises if this would be contrary to their religious belief.In our view, the scope of the exemption in Regulation 16 gives adequate protection to the absolute right in Article 9(1) to freedom of conscience and religion. Nobody is required by the Regulations not to have beliefs about the morality of different sexual orientations, or its compatibility with the tenets of one’s religion, or punished or subjected to any other disadvantage for having such beliefs. In our view, the prohibitions on discrimination in the Regulations limit the manifestation of those religious beliefs and that limitation is justifiable in a democratic society for the protection of the right of gay people not to be discriminated against in the provision of goods, facilities and services.

It seems to me that the last sentence of this paragraph contradicts the second, but maybe I’m reading it wrong. Once again, we have the ridiculous distinction between holding “religious beliefs” and “mainfesting” those beliefs. The report goes on to make clear that no further exemption should be granted in the regulations for Britain as a whole.

The report goes on to talk about social services and what are called “public functions” (for instance, adoption services or retirement homes) that might be provided by religious organizations that operate under a contract from or with the permission of the government. About those the report said:

52. In our view there is nothing in Article 9 ECHR, or any other human rights standard, that requires an exemption to be provided to permit religious organisations to discriminate on grounds of sexual orientation when delivering services on behalf of a public authority. Such an exemption would provide a protection not for the holding of a religious belief but for the manifestation of that belief. Where such manifestation of a belief conflicts with the right of gay people not to be discriminated against in their access to services as important as adoption services, it is in our view necessary and justifiable to limit the right to manifest the belief.

At this point I think it’s pretty clear what’s going on here. By telling themselves that they aren’t impinging on what anyone “believes” (i.e., they aren’t prohibiting you from holding on to your Neanderthal ideas about sexuality), they aren’t violating the right to freedom of religion–all they’re doing is prohibiting you from “manifesting” that belief in any way that’s concrete or substantial. Though it may be the unqualified teaching of your faith (say, Catholicism) that homosexuality is wrong and harmful, and that placing children in gay households would be harmful to those children, you dare not act on that belief, though you are free to hold to it. Which kind of vitiates the whole freedom of religion thing, except in the Orwellian environment of the New Europe.

The report also has interesting things to say about the subject of “harassment”:

55. The Northern Ireland Regulations, however, do cover harassment on grounds of sexua orientation. They provide that a person, A, subjects another person, B, to harassment “where, on the ground of sexual orientation, A engages in unwanted conduct which has th purpose or effect of (a) violating B’s dignity, or (b) creating an intimidating, hostile, degrading or offensive environment for B”. Conduct shall be regarded as having such an effect only if, having regard to all the circumstances, including, in particular the perception of B, it should reasonably be considered as having that effect.

56. During the passage of the Equality Act, the House of Lords removed harassment on grounds of religion or belief from the Bill. Lord Lester, who moved the relevant amendment to the Bill, explained that one of the main reasons for deleting harassment from that Bill was concern for the impact on freedom of speech in respect of comments made about the beliefs of others. In our view, however, different considerations apply in relation to sexual orientation, race and sex, because these are inherent characteristics. We therefore welcome the inclusion of harassment as a separate instance of unlawful discrimination within the Northern Ireland Regulations and we recommend that it also be included in the forthcoming Regulations for the rest of Great Britain.

In other words, in the Northern Ireland regulation, all a person has to do is shout, “help, help, I’m being repressed!” or some such, and his claim is pretty much automatically accepted. This means that “harassment” is no longer defined by the law, but by the sensititvies of individuals, who can always claim that they’re being harassed in order to shut down expression of a point of view they don’t like (such as happens on American college campuses on a routine basis). In paragraph 58, the authors of the report offered this potential Catch-22 scenario:

As was explained in the debates on the Northern Ireland Regulations, where a person carrying out an exempt activity seeks to explain why a person has been excluded from that activity, there is a risk that the person being told will regard the explanation as violating their dignity or as offensive, and therefore claim that they have been harassed.

The report does recommend that a more precise definition of harassment be included in the British regulations, but one wonders how precise one can be in an area like this.

Finally, the report takes up education. It talks again about the exemption (or rather, lack thereof) in the Northern Ireland regulations regarding non-discrimination by schools, and specifically about curriculum. How do they think anti-discrimination laws shoudl effect what a religious school teaches?

67. We do not consider that the right to freedom of conscience and religion requires the school curriculum to be exempted from the scope of the sexual orientation regulations. In our view the Regulations prohibiting sexual orientation discrimination should clearly apply to the curriculum, so that homosexual pupils are not subjected to teaching, as part of the religious education or other curriculum, that their sexual orientation is sinful or morally wrong. Applying the Regulations to the curriculum would not prevent pupils from being taught as part of their religious education the fact that certain religions view homosexuality as sinful. In our view there is an important difference between this factual information being imparted in a descriptive way as part of a wide-ranging syllabus about different religions, and a curriculum which teaches a particular religion’s doctrinal beliefs as if they were objectively true. The latter is likely to lead to unjustifiable discrimination against homosexual pupils. We recommend that the Regulations for Great Britain make clear that the prohibition on discrimination applies to the curriculum and thereby avoid the considerable uncertainty to which the Northern Ireland Regulations have given rise on this question. We further recommend
that the Government clarifies its understanding of the Northern Ireland Regulations on this matter.

So, the sixth grade teacher at St. Mildred’s Catholic School can teach that the Catholic Church believes homosexuality is wrong, but not that homsexuality is wrong. Some people hold to that opinion, but that doesn’t make it right, even if those people include the Pope and all his predecessors. In this way religious schools essentially have their authority cut out from under them and have it replaced by that of the State, which alone has the right to decree what is right and wrong in the area of sexual morality. Is what Catholicism (or Islam, or evangelical Protestantism, or Judaism, or any other religion) teaches “objectively true”? Doesn’t matter–the State has decreeds that it, and it alone, is the arbiter of what is “objectively true,” and what is “objectively true” is that sexual orientation is a genetic characteristic just like race and sex, despite the lack of scientific evidence to that effect.

If the recommendations of this report are taken as is by Parliament, there are many possible outcomes, but one is virtually certain: either traditional Christian education will largely disappear from Great Britain, or there will be large-scale civil disobedience against the curriculum regulations it proposes. And that’s just a start. Truth be told, this constitutes a frontal assault on the traditional ordering of rights in Anglo-American practice, which placed freedom of religion and speech at the apex of rights, with only the most extreme of circumstances providing justification for limiting them. Now, these rights are in the process of being subordinated to the right not to have one’s feelings hurt, and that, ironically enough, is almost certain to lead to a less civil, as well as less free, society in the end.