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Posted on Thu 19 April 2012

What Limits to Religious Freedom? A Response

The following transcript is Bishop Michael’s response from the debate “What Limits to Religious Freedom?”, one of a series of Westminster faith debates organised by the former Home Secretary, Charles Clarke, which took place on 18 April 2012.

I am very grateful to Dr Jones and Professor Malik for setting out their positions so fully. There is much to agree with and admire in what they say but, of necessity, I shall concentrate on where I have questions or disagree.

I am not sure that Professor Malik’s examples are the most characteristic (what about Sheila Matthews, the paediatrician who was excluded from an adoption panel for her faith, Andrew McClintock the magistrate and Gary McFarlane the Relate counsellor?) and that she has stated the question accurately. For example, with Ms Eweida, the point is that people of other faiths are allowed by BA to wear their religious symbols publicly (such as the hijab or kara). It is only Christians who have not been allowed to wear the cross. Similarly, with Ladele, it was the employers who appealed against her after she had won in the initial determination. So much for exhortations to dialogue and to non-adversarial solutions to these problems! Christians must always seek such solutions but, as they say, it takes two to tango! With the Bulls, also, the men were not denied access to the Bed and Breakfast as such but to a certain kind of accommodation which the Bulls provided only for married couples (whatever we think of their practices, we must record them accurately).

Professor Malik is in danger of confusing equality of persons with equal regard for behaviour and lifestyles of different kinds. In other words, of reifying behaviour or lifestyle as if they attracted the same kind of rights as persons. Whether we have, in fact, reached a balance, between religious freedom and equality for sexual preferences is precisely the question facing us. It has definitely not been settled as Professor Malik believes. Race and gender are distinct issues and we should not confuse these with sexual preference.

Her position strikes me as a kind of ultra-Benthamite legal positivism: the law must be obeyed simply because it is the law. In this she ignores the legal and moral tradition set out by Sir William Blackstone, recognised even by Baroness Warnock, that morality transcends law and that, sometimes, law has to be revisited in the name of morality and, we might say, belief. There is little recognition in her paper of traditions like moral realism (how things are and how they best function), the Natural Law tradition and perceptions of the Common Good. Nor is there any acknowledgement of the ways in which moral codes have generally emerged from religious traditions. In our own society, the pervasive influence of the Ten Commandments in both law and morality, for instance.

She does not refer to the long standing custom in this country of respecting conscience, especially where it has been formed in a reputable moral tradition, as in conscientious objection during war or even in the workings of the Abortion Act of 1967. Such respect has largely been overturned in the recent Equality legislation. Why? Legal positivism can lead to totalitarianism and to a tyranny of the majority. It will not lead to that balancing of rights which we need today. Most conflicts in the last one hundred years have in fact been caused by totalitarian secular ideologies. In the past, including respect for conscience was part of law making, why is it not so now?

Reasonable accommodation of religious belief at the workplace is a well-developed legal doctrine arising out of the First Amendment to the Constitution of the United States and from Civil Rights legislation. As an American judge has said, “it is part of our happy tradition of avoiding unnecessary clashes with the dictates of conscience”. If such a doctrine had been in place in this country, we would have avoided many of the unhappy instances provided by Professor Malik. Ms Ladele, for example, could easily have been accommodated because there were other registrars to deliver the service required by the law and no one would have been denied a service or felt slighted. The law mandates a service to be provided not necessarily who provides it. It would be good to know if Professor Malik agrees with Andrew Koppleman, whom she cites in her paper in this regard, or whether she wishes to stay with her Benthamite conclusion. Can she have it both ways?

Where Dr Jones is concerned, the International Convention on Civil and Political Rights provides for an exception to free speech not only where there is incitement to violence but also to discrimination against an individual or group. That is as far as we should go. There is no room here, for example, for laws preventing “defamation of religion”.

As to the role of the religious in promoting and protecting freedom: it would have been good to have seen some reference to the Reformation’s insistence on the availability of the Bible for all, Evangelical support for Roman Catholic emancipation in this country and the Second Vatican Council’s Declaration on Religious Liberty; Dignitatis Humanae as an important background to our discussion. The ways in which secular and religious groups worked together to limit the scope of hate speech legislation is also worth noting.

I agree that the presumption for freedom of expression should remain. Such freedom, however, is not absolute but should be tempered both by a passion for truth and respect for our fellow-citizens and what is most dear to them – even when we disagree with them. Whilst there must be freedom for rigorous criticism and debate, this cannot be a licence for gratuitous offence. Such a dual commitment is vital if we are to live in a free but also harmonious society.

I look forward to further discussion of these issues raised by our distinguished presenters and by this response.

+Michael Nazir-Ali

18 April 2012

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