There’s a certain amount of debate in human rights circles about whether, although all rights are supposedly equal, there is in fact a hierarchy of rights. And when people discuss this, they usually add “and the right to freedom of religion is at the bottom of it.” Or words to that effect.
So, according to the Human Rights Act 1998, what rights do we have?
- Protection of property
- Right to education
- Right to free elections
- Right to life
- Prohibition of torture
- Prohibition of slavery and forced labour
- Right to liberty and security
- Right to a fair trial
- No punishment without law
- Right to respect for private and family life
- Freedom of thought, conscience and religion
- Freedom of expression
- Freedom of assembly and association
- Right to marry
- Prohibition of discrimination
Additionally, the Equality Act 2010 prohibits discrimination on grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Looking at these rights, quite a lot of them are the kind of right that isn’t really vulnerable to conflict with people trying to exercise other rights. For instance, in order for there to be a conflict with the prohibition of slavery and forced labour, it would be necessary for someone else to argue that one of their rights included the right to enslave others or subject them to forced labour.
Some rights are capable of conflict, but only in rare circumstances. For instance, the right to life (of an unborn child) conflicts with a woman’s right to respect for private and family life, in the case of abortion. Different states have decided that the balance of rights falls in different places; in England, for example, the woman’s right to respect for private life is given priority over the foetus’s right to life – and, indeed, under English law the foetus is not legally a ‘person’ with rights at all, so technically there is no conflict. Personhood, in the eyes of the law, happens at birth.
In Ireland, the balance of rights is counted differently: the foetus’s right to life (and personhood begins at conception in this case) overrides the woman’s right to respect for private life, unless her life is also in danger – which, of course means that it is no longer a conflict between life and private life, but between two lives.
The right to freedom of religion or, more accurately, the right to manifest one’s religion, however, is a right that is much more prone to conflict with other people’s rights. One of the most glaring ways in which one person’s right to manifest their religion conflicts with the rights of another is in the matter of homosexuality. This has been recently demonstrated in the cases of Bull & Bull v Hall & Preddy 2012 and Black & Morgan v Wilkinson 2013. In both cases, the complainants were gay couples (one in a civil partnership, one not) refused bed and breakfast accommodation in a double room by the Christian proprietor of the B&B where they had booked. The proprietors’ arguments included that:
- it wasn’t about homosexuality, it was about married-ness, and unmarried heterosexual couples were also refused rooms.
- it wasn’t about homosexuality, it was about homosexual behaviour.
- even if it was about homosexuality, it didn’t matter because
in all three cases, the discrimination (if it was discrimination) would be allowable because the B&B proprietors were simply exercising their right to manifest their religion, which included the belief that homosexuality was sinful. This being the case, they should not be expected to do violence to their beliefs by aiding and abetting homosexual acts under their roofs.
Other people have explained, and commented on, this much more elegantly elsewhere.
But to return to the conflict of rights, most rights are self-directed: the right to life is basically a right not to be killed. The right to education is a right to education for oneself. The right to a fair trial does not have implications for the fairness, or otherwise, of other people’s trials.
The right to freedom of religion, on the other hand, is not only self-directed (the right to believe, and the right to worship) but it is also other-directed, in that religions prescribe how adherents should treat others. And it is this which causes the conflict, because some of the major religions have important beliefs that require believers to discriminate against others on grounds of sexuality, gender, and/or marital status.
But when rights conflict, should there be a hierarchy? Are all rights equal – or not?
At this point, I think it’s necessary to step back from the letter of the law, and consider why the Human Rights Act was passed in the first place, and why rights exist.
The top and the bottom of it appears to be that rights exist to allow people to live their lives without undue interference from others (especially the state). So basically, it’s all about ‘do as you will, only harm none’ (with an obligation on the state to facilitate this, plus a reasonable standard of living).
This, I would suggest, is why religion frequently gets the short end of the stick: the gay couple on holiday just want a B&B room like any other couple; the Christian proprietor wants to treat them differently (worse) than non-gay couples. This is the right not to be discriminated against, going up against the right to discriminate.
But why should that be the case? If the Christian B&B proprietor truly believes that homosexuality is sinful, why should he, she, or they, not be allowed to act on that honest belief? This is, after all, a matter of morality. And where would we be without morals?
I would suggest that while this country would like to pretend that it has equal respect for everybody’s culture and everybody’s moral code, this is not, in fact, the case. The existence of the Equality Act itself proves that this country has a legally-enforceable moral code in certain areas, rendering conflicting moralities illegal.
Is this a bad thing?
Personally, no, I don’t think so. A country has to have some clearly defined rules about what is, or is not, morally-acceptable behaviour. Otherwise, for example, we might have the situation where it’s viewed as acceptable by some members of the community to kidnap young people for forced marriage, or to shoot young men for being the wrong race in the wrong place. True cultural moral relativism means that if someone says “in my culture, we believe it’s OK to shoot black people”, you pretty much have to nod and say “Well, I don’t agree with it, but each to his own” and then let them get on with it. Morality is dependent on the prevailing culture – which prevents a bit of a law-and-order problem in a multicultural society.
So we have to be morally absolutist about some things: it’s not OK to kill people because you don’t like the colour of their skin; it’s not OK to force a person into marriage; it’s not OK to steal other people’s property. And we have also decided, as a country, that homosexuality is not wrong, or immoral, and that people should not be disadvantaged because of their sexuality any more than they should be disadvantaged because of their gender or their race.
The Christian B&B vs Gay Couple cases, therefore, are not about a straightforward conflict of rights. They are about whether one section of the population (Christians) has a right to discriminate against another section of the population (homosexuals) either for simply being who they are, or for engaging in practices that are completely legal.
Or even, it’s about whether one section of the population (Christians) has a right to impose their own particular morality over the morality outlined by the laws of the country in which they live, and to unilaterally impose sanctions (such as refusal of services) on persons who are acting morally by the standards of the country.
A minority culture living within a country has, of course, the right to impose its own moral standards on its own members. If a Muslim woman wishes to wear a veil in the UK, then good luck to her, unless the practise has an adverse effect on others.
If I went to Saudia Arabia, I would expect to have to wear a veil, because that is dictated by the morality and laws of the country. I wouldn’t like it, and I don’t agree with it, but I accept that by visiting the country I would have to accept its laws.
But I would strongly protest against a minority culture expecting to be able to impose its own internal rules and morality on outsiders who are acting within the terms of the country’s legally outlined morality.* Any citizen of the country should be able to go about his or her life safe in the knowledge that law and morality are not mutable; if their actions are legal in one town, or in one business premises, then they are legal in all.
If we truly believe in equality – if we believe that nobody should be discriminated against on grounds of their sexuality – then that right is absolute. To say that some people are allowed to discriminate against people on grounds of sexuality is to say that actually, homosexuals aren’t truly equal – that the LGBT community can only expect to be treated equally as long as they take care to stay out of areas populated by people who don’t agree. That is effectively “You are equal until someone says you’re not.”
I hope, when the two cases above go to the Supreme Court in the autumn, the preceding judgements will be confirmed: that it is not legal to discriminate against homosexuals when providing services to the public. Otherwise, the Marriage (Same-Sex Couples) Act 2013 – good news though it is – will be only false progress.
*Note: if a person is a personal guest within a culture, then they tacitly accept ‘insider’ status for the duration of the visit.