Equality and human rights through the looking-glass
Rights? Pshaw. The clerics will tell you what rights you can have, thank you. And the UK Equality and Human Rights Commission will help them out. Yes, you read that correctly.
After supporting several gay equality cases, the EHRC now believes the rights of religious people are not being upheld…
To rectify this supposed shortfall in religious protection, the EHRC will now push for a new legal principle of “reasonable accommodations” so that believers can negotiate the boundaries of their contract with employers.
Which means…? That believers can refuse to do their jobs if their religious beliefs tell them to.
There is the case of Lillian Ladele, the Christian registrar who refused to perform civil partnerships and so was disciplined. And that of Gary McFarlane, the Christian relationship counsellor who was sacked for refusing to counsel gay couples. The EHRC has decided to back these people in the name of “reasonable” compromise.
“Compromise” as in allowing people to refuse to do their jobs if doing them involves providing a service to people they think are oooooooky on religious grounds. That’s not compromise. Would the EHRC back Hindu people who refused to provide a service to dalits? Would they back doctors and dentists who refused to provide a service to menstruating women?
Maybe they would.
When one group refuses to fulfil its job description because it disapproves of another group, there is no middle ground, no give and take. Those responsible for judging the behaviour have to back one or the other. This is the roulette of human rights. You can’t put your chips on the black and the red.The EHRC is not even trying to do so – it has switched colours, and what an extraordinary switch that is. To refuse to work with gay people is ipso facto discrimination, however you attempt to justify it. Yet now the commission will champion the discriminators.
He’s not making it up, either – you can read it for yourself.
See? See? Gossip about elevators, 9 million comments in an hour. Human rights? Dead silence.
Tssssssssssss.
I can’t figure out how to complain to the EHRC about themselves.
I just got here!!!!
geez.
There was a two part doco on Compass (religious issues show on our ABC) about gay marriage. It was very frustrating. The same sex couples they interviewed were all believers, and the hoops they were jumping through in their heads to reconcile their faith and their sexuality was saddening and frustrating to watch.
Quick question: I have been told, in arguments various, that there are secular reasons to disagree with gay marriage, abortion and choice in dying (The three obvious issues) so you can’t just blame religion. What the heck are these secular reasons, and are they not just secular/atheist people rewording and rejigging religious rationales?
There’s nothing to disagree about hence the silence.
BTW would you like to come to my room for a coffee?
What would happen if a Christian refused to work with a Moslem or a Moslem with a Christian, where would the compromise be in that case? What chance would a self confessed atheist have of getting away with that kind of bigotry?
People really don’t have religious freedom in a secular democracy nor should they, as it’s simply a license to discriminate. or violate the human rights of others.
What a coterie of multi-culti,pc, wankers. What a great little earner for lawyers.
What elevator gossip?
No, no, no! That sounds terrible.
‘BTW’ what was I thinking!
I meant to say – I’d love to discuss this further. And I have a particularly fine blend of Andean coffee in my room, dry roasted in the skulls of LLamas. Would you like to dry some?
Didn’t we complain about Trevor Phillips a month or three ago? This is where our earlier complaints come to fruition. A “human rights commission” devoted to being an advocate for religious groups cannot also advocate for human rights. It is a basic contradiction that cannot be resolved without taking a clear stand on one side or the other. Fence-sitting cannot resolve this.
BTW Ophelia… zombies are the coolest thing out there, if you want hits then post about zombies! :-)
I’m with you there. The only secular “reason” I ever see is just the old naturalistic fallacy, usually not even phrased imaginatively.
David M: The most common secular reason to oppose abortion I’ve encountered is based on late term medical viability (it is legal up to 24 weeks in the UK), although that said, there aren’t good secular reasons when the foetus isn’t viable. At that point, so far as I’m aware, the arguments against abortion tend to be religious (an argument about when ‘life’ begins).
The most common secular reason I’ve encountered to oppose gay marriage is an argument that (a) marriage has always historically been between males and females and (b) allowing gay marriage is something of a ‘slippery slope’, in that once it is allowed to proceed, a liberal society will over time permit polygamy, concubinage etc. Indeed, the UK permits a degree of polygamy, where the polygamous marriage has been contracted outside the UK and the relevant parties then immigrate to the UK. Breaking up families (of whatever sort) is seen to be contrary to public policy.
The argument against euthanasia is almost wholly grounded in religion, although I have seen a secular argument that is analogous to the abortion one: it is ethically very awkward for medical personnel to make a ‘viability call’, just as people who have made a ‘living will’ may, when confronted with the reality, wish to override their earlier stated preference.
All of these arguments are, I submit, relatively weak (and in the case of the ‘marriage was always between a man and a woman’ historically inaccurate). They do, however, represent an attempt to deploy something that many see as monotheism’s most notable contribution to ethics: moral universalism, care for the weakest and most vulnerable (the very young, the very old) and the reanimation of an ancient prejudice against homosexuals that existed in Jewish culture, but not in Greece or Rome. In a sense, you are right to suggest that it’s a ‘rejigging’ of religious rationales, although there are particular legal/historical reasons for that.
Most people are aware that the ‘other’ great legal tradition in the world (apart from England’s Common Law) is that of the Roman, or Civil law. It is the basis of the legal systems of Western Europe and Japan. However, when the Roman Empire became Christian, the pagan laws of marriage, divorce, abortion, rape and concubinage were swept away and ‘made Christian’. Yet, if you look at those pagan laws, they resemble our modern laws, not the later medieval Canon law. Liberal divorce laws where women kept their property; rape as a crime against the person; abortion not only tolerated but encouraged, cohabitation (which the Romans called concubinage), active encouragement of euthanasia and suicide on the basis of ‘shame’ etc. This in addition to gay marriage (which lots of other cultures complained about; there’s a beautiful whinge in the Sifra about a couple of Roman lesbians getting hitched).
Yet, those same enlightened Roman laws actively encouraged the killing of the disabled, especially if the child in question was ugly (the Romans equated beauty with moral worth).
The early Christians fought bitterly, tooth and nail, to change those laws. This was in large part because Roman pagans were ethical particularists. Citizen women enjoyed the protection of unusually enlightened laws against sexual assault (as well drafted as ours, and sometimes better). Slaves had no consent to give, and could be raped by their owners ‘at will’. When St Augustine argued in The City of God that slaves could also be raped, he was making a very bold and unusual claim. Of course, he muddied the water when he argued that lots of citizen women were unchaste, while the Christian slave-women were ‘good’ (note, already, judgment on the basis of female sexual behaviour), but it is an early and powerful example of moral universalism.
When modern secularists argue against abortion, euthanasia or gay marriage, they are co-opting one attractive feature of monotheism (its moral universalism) and in an odd way, having an argument with a hypothetical Roman jurist who is calmly saying, ‘look, you noodle, we aren’t all equal, some are faster in the fifty yard-dash, better looking… and more valuable qua people, that sort of thing’.
Some people (even some secularists; there used to be several hanging around on the old Richard Dawkins forum) think that the abandonment of monotheism will mean the loss of moral universalism and a reversion to what can loosely be described as ‘pagan’ morality, with its ethical particularism and unblinking acceptance of great inequality. I think they’re wrong; the values bequeathed to us by the Scottish Enlightenment (unencumbered by St Augustine’s awful judgmentalism) are the main source of our modern conception of moral universalism, not Christianity and certainly not Islam.
How about a reasonable compromise: employees and employers can negotiate this between themselves, and if that contract is broken, those are the grounds to sue or fire. And if you’re a registrar working for the government, you don’t get to discriminate because the government is not allowed to discriminate. I mean, seriously people, in the two example cases given, how on earth did this not come up until the employee was already working? People who think they ought to hobble themselves because of magical thinking should do just that–hobble themselves.
OK, I think I see a way to deal with this. If anyone refuses to deal with me because I am gay, I will accuse them of sexism, because they would deal with me if I was a woman and married to my husband.
That should keep the EHRC busy.
Actually, I’m serious.
@10: Wow. Wasn’t expecting that. But thanks. That does rather make sense.
It is rather cheeky of me to lump the three issues together, two are related, but the marriage angle is obviously a somewhat different kind of dispute.
I guess then the second part of the question becomes who actually does, by their actions, oppose these things. And this is where I see religion as the problem. have been reading The Australian Book of Atheism recently, and the chapters on all three subjects share one common theme, ALL of the oppsition is entirely religious, and the “secular” opposition is pandering to religious lobby groups/voters, so yeah.
While your brief history above is interesting, a part of me wants to file it under unnecessary detail next to “sophisticated theology” and the search for Atheist Martyrs.
Ghah, I hope that doesn’t seem like an underhanded dig, it’s not meant to be, it’s just musing on the defenses of relgion against criticism.
Hey now. I’ll have you know I was traveling all day–that’s my excuse and I’m sticking to it!
I really like Steve Zara’s idea. Bigoted believers seldom consider how these things could be turned around and used on them. And the UK EHRC must be a sad joke of a commission. Next will they be defending men who insist that all women wear burkas, no makeup, or only dresses in their presence?
Yeeks. Fantastic essay, Skep Lawyer.
David M: No offence taken; I’m a working lawyer with an interest in legal history, so I find this stuff interesting (sad, but true). I do get a bit of a kick out of tracing a legal principle to its origin and pinning the wriggly little thing down. It can be helpful to have an awareness of the background when people are making exaggerated claims for their religion (‘without Christianity there would be no moral universalism’, for example).
Hey Steve? Are you the wife or the husband? Are you officially claiming to be the female in the relationship? These things could matter…
… not to me, mind you. Mostly my opinion on homosexuality is that I don’t get to have an opinion since it is none of my damned business either way. If two dudes or two chicks (or five of one and a dozen of the other or any combination folks can come up with) want to get married, it doesn’t affect my marriage one way or another. It isn’t like me and my wife were doing whatever we do as a married couple and one of us said “Stop. Can you feel that? I think gay people just got some rights” and then the other one said “Well, I guess we should stop having sex. If gay people can get married, and have sex without being beaten to death, I don’t think I can find my way to an orgasm.”
That’s just STUPID!!!! Every anti-gay argument is just that STUPID. No one should take it seriously, ever!!!
Thanks Ophelia.
By way of further background, I suspect that this EHRC change of attitude came about in response to this case:
http://www.bbc.co.uk/news/uk-england-bristol-12214368
In chambers we are taking bets on the next incident occurring where the pub owners are Muslims who refuse service to a lesbian couple. Muslims get considerably more eggshell treatment in the UK than Christians.
Oh dear. My sweet grey-haired mother keeps asking that. I’m never sure quite how to answer.
Yes, I remember that case.
Hey there’s nothing “sad” about your finding this stuff interesting. It is interesting.
Right, Ophelia, I haven’t commented on this post because I don’t give a shit about human rights. And the other discussion was “gossip about elevators.” You’re absolutely right. Unreal.
Fannnnnnnnnnntastic.
And now they’re saying “Oh, oops, sorry, got that wrong – other way around. The hotel has religious rights.”
Salty it was a joke. Just a joke!
I make them quite a lot.
I find they cut the tension. :- b
Hm.
That was a joke too!
(Ironically [or not] I just made a sour joke at Facebook about “jokes” about women – having been the unpleased recipient of a grindingly predictable dull stupid one.)
However. I am not going to cease making jokes. That’s right out.
Apologies if this link is too tediously British and legalistic, but the EHRC volte face is only one aspect of ongoing debates about religion, sexuality and freedom of association in Britain. I tried to drag all the threads together here:
http://skepticlawyer.com.au/2011/01/23/manners-pianners-tables-and-chairs/
…But probably didn’t succeed. Still, there are lots of links explaining various bits of the background, if nothing else.
And…seriously…did you really think that was a genuine accusation? Come onnnnnn.
I’m going to have to add you to the must-read list, skep lawyer. The bit about differential discipline is great (because infuriating).
Lovely dog DEM has. I’m just back from a walk with the 4-month-old version.
A labrador? Even better, a black labrador? DEM’s dog is super, super smart. I sometimes feel as though I’m being sized up and psychoanalysed by a dog. It’s slightly worrying.
I need to add this blog to my list as well. In fact, my blog-roll badly needs updating and defestifying.
The comments thread on that post was rather good too — I’d forgotten that part.
I did when I first read it – get it now. A couple of your posts on the previous threads had left me kind of perplexed, I’m distracted by SYTYCD, and I’m grumpy as all hell.
@27. Great reading so far.
So, basically, religious groups get to be protected by the anti-discrimination laws while being allowed to discriminate against others? That hardly seems fair. I still maintain that if an LGBTQIA employee would have to do their job correctly, without discriminating against a religious person (even a religious person who thinks they’re going to Hell), then a religious employee who is against LGBTQIA people should have to do their job correctly without discriminating, too.
It always bothers me when these are called “conscience clauses” because I would consider it a matter of conscience if someone didn’t discriminate, even if they were being told to, rather than the other way around. Asking to be allowed to discriminate it’s conscience; it’s a corruption of conscience.
@Comment #1: Over at Daylight Atheism, Ebonmuse’s entries related to the elevator incident had hundreds of comments (and he eventually had to close commenting on those posts) while an entry filed under “The Contributions of Freethinkers” about Asa Philip Randolph (http://www.daylightatheism.org/2011/07/the-contributions-of-freethinkers-xii.html) currently has four comments.
Re: the case of Lillian Ladele, this is also somewhat of an issue in the U.S., as a town clerk in upstate New York just resigned based on religious objections to same-sex marriage (several other clerks have stated their objections but will follow the law because they want to keep their jobs). No word on whether the recently resigned clerk will pursue legal action yet, but fortunately she doesn’t have many options. While most state-level same-sex marriage legislation has exempted private religious groups and organizations from performing marriages (like in New York), it has also required government employees to follow the law. As it should be.
[…] Equality and human rights through the looking-glass […]
I don’t get it. Is this about extreme poverty? People are usually free to not do their jobs. In many places, people really don’t have much choice other than suicide, and parts of the UK are pretty damn poor, but I don’t think there has been many laws against not doing your job. Malpractice is something else.
Hi David,
@13: David M
Let’s consider euthanaesia and the idea of “choice”. The Devil is very much in the detail. I attended the Atheist conference in Melbourne last year – where Exit International (and the pro-prostitution Sex Party) had stalls to peddle their wares – interestingly these were the only special interest groups (like for example Greenpeace, Amnesty etc), all others that I saw were humanist/secularist orgainsations. Anyone could have access to the Exit International materials. Including depressed persons, young people (students assisting at the conference?) who think all sorts of things are the end of the world. Oh yeah, choice!! Responsibility…
Again the mantra of “choice”. We all know that this life is the only one we have. Is it right and proper to keep people heroically and artifically alive and miserable via technology? No. To even have such an option is in a sense a privilege. I worry that the question will escape these boundaries, and the notion of “quality of life” will gain such currency that “miserable” persons will be subtly pressured to exit left as a convenience to all. To live in some ways is to suffer, and so many people live lives “not worth living”! This all comes CLASS coded, but not exclusively. The people most likely to avail themselves of these wonderful new progressive “rights”, once obtained will not be well off.
Of course we want people to have “choice” but every human decision takes place within a context, and I am far from convinced that euthanesia as currently proposed by its advocates can really end up as other than an open invitation to do away with useless people in a very practical, secular and money-saving fashion. A “loving” (maybe) death bed scene for people of means, a quick and convenient (to the system) exit for lesser folk, based upon wanting to spare the family, despair at uselessness after a life of effort, well intentioned health workers with impossibly stretched budgets…
Some other exploitative “progressive” stances:
Endorsement of prostitution and pornography – women “choose” this wonderful empowering option. Wouldn’t you – give up the day job and sell your @rse? If it paid more?
So-called “surrogate” motherhood – likewise, a “free” choice sanctified by commercial contract, and guess what – GAYS can be seen to want it, demand it, cast the slick of progressive thinking upon it. Gays are not the target market (too small for starters) just the commercial PR. What do you think about that? (rhetorical question, no answer needed). Is a bad thing OK if fronted by a good cause, or does such a thing besmirch the cause and others drawn in, and must it be criticised?
I don’t propose to send the thead off on any discussions as to the pros and cons of these positions, but simply to indicate that there can be perfectly reasonable and completely non-religious reasons to object to some of the things that are posed as being inherently and unquestionably progressive. No particular strand of thought “owns” Atheism – to be an atheist is to simply argue the toss from a point of view that does not seek Divine validation. The arguments may be good or bad, the Causes defended right or wrong – religion is not necessarily lurking in the works if you disagree.
Regards, Southern Cross
My religion forbids me from working on Sundays. And Mondays, Tuesdays, Thursdays, Fridays, and Saturdays. My employer says this would keep me from being useful, but that’s just intolerant and discriminatory. I’ll still work on Wednesday! That’s “reasonable”! Why are my rights being trampled on, huh?
My snark at #39 aside, I suppose I probably do support “reasonable” accommodations for religious belief. For example, I can imagine an employer that gives time off for Christmas, it might be “reasonable” to accommodate an employee with a different religious tradition who really wanted to take time off on a different day. (In some jobs, e.g. like an assembly line, this would be potentially problematic, but at least in principle I think that is the kind of accommodation I would consider reasonable, and that refusing to budge without some very strong practical reason would be somewhat of a human rights issue)
I think EHRC is just allowing “reasonable” to be stretched too far. In the case of the registrar, they would have to have a second registrar on hand at all times. Not to mention motivations matter too… in my aforementioned example, it would be pretty reasonable to demand that an employer let me take a couple days off for Eid al-Adha and work Christmas instead, but it would be less reasonable to demand that my employer let me take a couple days off for I’m Gonna Shoot Some Fags Day. I know it’s a little dodgy to be basing policy on the content of beliefs, but dammit, it matters!
skep lawyer – yup a black lab. Not mine, but a frequent guest. I’m fundamentally a cat person, really, but I do like dogs.
Salty – gotcha. Aren’t we all. :- b
Southern Cross – good job of putting the secular case. I have huge reservations about so-called surrogate motherhood myself. I thought the Baby M decision was a nightmare. Still do.
@Southern Cross: Cheers.
Firstly, my knowledge of surrogacy is sorely lacking, so I’ll just leave that and ponder for the moment.
Granted on Porn/Prostitution, although I really think they are surely different kind of issues to the others discussed. (And I probably need tyo explain justify that statement, and I really can’t right now.)
As for Euthenasia/choice in dying, I must admit to being heavily influenced by Eric Macdonald’s writing on the subject. The abreviated rebuttal to your(?) argument that it is a slippery slope and we’ll send off the useless to die for purely pragmatic reasons is that a. it’s a slippery slope argument and b. it isn’t bared out by the statistics in countries where assisted dying is allowed. It also seems to me that it’s seen as acceptable, even by the religious and many who are opposed to euthenasia, to turn off life support, to allow people to die “naturally.” These situations in paliative care seem to me as ripe for utilitarian peer pressure as actively helping people to die, and again, I question if the evidence bares out the slippery slope suggested.
Again though, cheers.
Skep Lawyer, I’ve got to ask (largely because I’m ignorant), were the views of Roman jurists (and it seems, Roman culture in general) that disparate from Roman philosophers?The particularist/relativist approach is definitely present in Greek and Roman thought from that era, but my mind instantly jumps to Plato’s ridicule of the Sophists for their belief in cultural relativism, his belief in the absolute good, and all of the Roman philosophers who followed him in that. This seems at odds with the particularist claim.
Or is it that while there was a belief in the absolute good, the application was particularist (as in the writings of Epictetus, for example)?
Fin: Roman law is almost wholly separate from Roman philosophy (such as the latter was). The few occasions any of the jurists mention philosophy (of either the Greek or the Roman sort), they engage in contemptuous snark.
They often go so far as to engage in a refusal to provide definitions of legal principles (Watson has written some excellent articles on this), building up conceptions using the same method as the later Common Law: by dint of a mass of single instances, from which the legal principle is then adduced. The method is sometimes referred to as ‘casuistry’ or ‘casuistic reasoning’. It is always inductive, never deductive.
The Romans also had no conception of enforceable rights (nor, however, did the Common law for many hundreds of years, so this is a common characteristic of highly sophisticated legal systems) and viewed people in terms of their ‘capacity’ (to bring suit, to act as agent, to contract, to bear witness etc).
While legal philosophy is interesting (it’s a distinct body of legal reasoning, known as ‘jurisprudence’), philosophers who study it find it passing strange. I shared a BCL jurisprudence class at Oxford with B.Phil students (ie, real philosophers); it often involved both the lawyers and philosophers staring at each other–and arguing profusely–as they engaged in mutual incomprehension. The philosophers all thought the lawyers were horrible utilitarians, the lawyers all thought the philosophers had no idea how the world worked.
Because the modern Civil Law (particularly in France and Germany) engages in more rights talk than the modern common law (thanks to the Enlightenment and its European codification movements), the philosophers in my course often went and read the Roman jurists, thinking to find some succour there, only to find that the Roman lawyers thought about the world in the same way as the common lawyers (pragmatic, particularist, utilitarian, much Roman contempt for Greek ‘airy-fairy’ thinking on show).
Later Christian theologians took Greek philosophy much more seriously, particularly when they came to attack the Roman jurists’ free market rhetoric (Roman lawyers were–to coin a phrase–relentlessly and uniformly ‘Thatcherite’, often evincing sophisticated economic thinking — price theory, mutually beneficial exchange, pareto optimality, Gresham’s law etc).
Awesome. Thank you. I’ll have to note: I’ve started reading up on this in the past couple of days, so you get bonus points for making me go learn.I had never really wondered about why Christians and St. Augustine so thoroughly adopted Platonic thought in their philosophy, I had always assumed that it was just the dominant thought of his time, which, of course, entails a whole bunch of contradictions if you consider the historical facts of the Roman reaction to Christianity’s philosophy.Your posts (and fair’s fair, the responses to those posts) have been an enlightenment.
Fin: a couple of academic papers (fully referenced, so go read the stuff in the footnotes by people who know more than me, especially Watson and Peter Stein) on the historical development of Roman law.
http://skepticlawyer.com.au/2011/04/19/get-off-my-lawn/
[On the development of Roman law’s equivalent of the Equitable jurisdiction at common law]
http://skepticlawyer.com.au/2011/04/07/be-civil-or-be-silent/
[On the Roman law contribution to the development of a right to privacy, an important part of European law, and likely to become a large part of English law in the wake of the News Corp scandal currently engulfing the country].
Awesome indeed. The last 2 paras of 44 are particularly fascinating (and amusing).
I’m picturing Martha Nussbaum and Richard Posner in conversation…which of course is a real world thing.
My favourite quotation (from a Roman jurist being incredibly Thatcherite) is from Servius Sulpicius Rufus. He was one of Cicero’s friends (1st century BC), and wrote the simplest (and most accurate) material on the clear-headed Roman law understanding of modern economic ideas. Also, in the fights between Nussbaum and Posner, Posner is usually right; he listens to Nussbaum far too much. When it comes to the recognition of rights (or capacity) for women, listen to the lawyers (especially the Roman jurists, who are wonderfully feminist, but also expect women to ‘take responsibility’), not to the philosophers, who are interested in ideas, not people.
Here’s Servius Sulpicius Rufus on mutually beneficial exchange:
In the context of human history, this is very rare. It also has the benefit of being right. Had we not been diverted by Christian crap, we’d have avoided not only the mass killing of Jews for lending money at interest, but the whole labour theory of value, a load of Marxist and Christian nonsense which has killed so many people over so many years.
I was put off Posner for awhile by reading whatever that book was about the economics of sex, or something, specifically the part where he talks about a “surrogate” mother’s desire to increase the price of the fetus – not a particular mother’s but the generic “surrogate” mother. It struck me as stark raving mad.
Economics (like evolutionary psychology) is about normal distributions, not individual diversity. To my mind, the failure of both economists and ev. psych aficionadoes to make that point clear is a legitimate source of concerns with their broader arguments.
The fact that a statistical sample tells you that persons x may act like y tells you nothing about the individual q in circumstance p. There are also many Roman law errors in Posner’s Sex and Reason, borne of a tendency to equate Greece and Rome (a very bad idea; one civilisation invented philosophy, the other law; the two intellectual systems have very little in common).
It is impossible to predict what one person will do (the common coin of Greek philosophy). It is, however, remarkably easy to predict what 1000 people will do (the common coin of Roman law). The first life table (the author compared life expectancies in cities that had been fully sewered with those that hadn’t) was prepared by Ulpian, a Roman jurist of the second century AD. That, if nothing else, should mark with clarity the two societies’ different ways of looking at the world.
Sex and Reason, that’s the one.
Dang that’s an interesting comment.
Amen to that. Just came back to check on the comments again, and now I have more interesting stuff to read!!!
Great work.