Recently arguments over same-sex marriage have drowned out other legal cases where respect for religious conscience has prevailed. As debates rage over what constitutes human rights, secular society remains unpersuaded by the Church’s traditionalist stance. Conor Gearty writing in The Tablet –
When the tide turned
Recently arguments over same-sex marriage have drowned out other legal cases where respect for religious conscience has prevailed. As debates rage over what constitutes human rights, secular society remains unpersuaded by the Church’s traditionalist stance
The rights and wrongs of their position notwithstanding, church leaders would surely be forgiven for feeling that they are being overwhelmed by the issue of gay rights. It seems to be everywhere, with even a Conservative Prime Minister leading the way on imposing a new definition of marriage in the UK, by incorporating same-sex partners, a move that would have been condemned on all sides as either idiosyncratic or extremist just a few years ago. How did this situation come about? Will it change any time soon? What can the Church do about it?
The first of these questions is the easiest to answer. The shift to a human-rights culture signalled by the Universal Declaration of Human Rights in 1948 has put down deep roots in Europe, where it has been supported not only by the developing union between an ever greater number of states within the continent but also by the existence of a politico-legal mechanism to ensure the protection of human rights, in the shape of the Council of Europe and its flagship juridical rights champion, the European Court of Human Rights, based in Strasbourg. The latter body has been operating now for over 50 years and it would not have survived if it had regarded itself as merely a diviner of the exact intent behind the words used by the drafters of the European Convention on Human Rights – the 1950 document over which it has definitive authority. The terms of that rights instrument are general, as was the intent that lay behind it. So far as the court was concerned it was expand or shrivel, and like most institutions, its judges chose the former option.
This has had an impact across a range of European legal systems. The Scandinavians have found themselves compelled to allow judicial processes against which their social democratic instincts rebelled. The Italians have been repeatedly excoriated for unacceptable delays in their legal system. And recently, of course, the UK has had its collision with Strasbourg over the right of prisoners to vote. Most countries have similar stories to tell.
Then of course there have been the gayrights cases. The Strasbourg court operates by balancing a quasi-democratic sense of what human rights should require in the Europe of today against a desire to give states a degree of leeway, particularly on ethical and moral issues. But the fewer states there are that adopt a punitive moral position, the more likely the court is to take it on. In this way the criminalisation of homosexual acts has been picked off in a series of cases that began in Northern Ireland and went via Ireland to reach other bastions of tradition such as Cyprus. Restrictions on gay people in the military were next to fall, and since then a range of decisions have extended the rights of gay people in relation to succession to tenancies, child custody and same-sex partnerships.
The European Court of Human Rights has not brought about these outcomes in isolation. Indeed some have been the achievement of the indigenous British courts. All of these changes have gone with the grain of European culture’s consistent and now decades-long prioritisation of individual freedom and personal flourishing which, together with the imperative of non-discrimination, have superseded older, more morally prescriptive codes of behaviour. The Churches, however, remain wedded to these traditional ways even though they no longer appear persuasive to the great majority of secular-minded persons (and indeed others within the Churches themselves).
And so to the second question: will things change any time soon? It seems unlikely. After civil partnerships, how can British society be persuaded that marriage must still always be between a man and a woman so far as the state itself is concerned? Mainstream experts in human rights see gay rights as an essential component of what human rights are. This was evident after the minority report following the recent Strasbourg case of the Islington marriage registrar Lillian Ladele (who refused to conduct civil partnerships on the basis of her religiously rooted objection to them). Dissenting from the predominant view that the council’s disciplinary action against Ms Ladele had not breached her convention rights, judges Vucinic and De Gaetano wrote of what they called the “combination of backstabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured ‘gay rights‘ over fundamental human rights)” which had “eventually led to her dismissal”. The borough had, they wrote, “pursued the doctrinaire line, the road of obsessive political correctness”. Writing about these dissenting dicta in the Ladele case, the University College London scholar Ronan McCrea has called them “extremely intemperate and disturbingly worded”. Meanwhile, the Vatican’s UN Human Rights Council representative Archbishop Silvano Tomasi has spoken of “a movement within the international community and the United Nations to insert gay rights in the global human-rights agenda”.
• Churches should probably stop trying to explain themselves – in the current climate it seems only to make things worse
If gay rights are indeed here to stay, what should the Churches do about it? To start with, they should probably stop trying to explain themselves, since in the current climate of what constitutes common sense this seems only to make things worse: Tomasi’s likening of controls on same-sex relations to “forbidding practices like incest, paedophilia, or rape – for the sake of the common good” strikes many religious and non-religious alike as nonsensical. And saying that gay marriage destroys “the essence of the human creature” and that it is a “threat to world peace”, as the Pope has reportedly recently done in various messages and speeches, might well be thought to fall into the same hyperbolic category. But the Church can hardly go on the offensive either. It never occurs to anyone to call for a renewal of the criminalisation of homosexual conduct and a revoking of recent advances in gay rights – this must be because these are clearly now irreversible changes.
In truth, the Church is stuck, loyal to tradition, but a return to basics looks unlikely. If we look past the gay-rights issue, the recent European Court of Human Rights case which involved Ms Ladele (together with the successful applicant Nadia Eweida and two other disappointed litigants) has much of value to say about the importance of religious freedom and the need to protect religious conscience as far as is possible – allowing Ms Eweida to claim victory in her quarrel with British Airways over the wearing of her cross. But these important points about secular society’s sympathy to religious feelings are bound to be lost in the noise generated by arguments over same-sex marriage.
• Conor Gearty is professor of human-rights law at the London School of Economics.