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Think Twice, Lady Hale

Think Twice, Lady Hale

WRITTEN BY COEL HELLIER AND MARK KOLSEN, GUEST WRITERS OF AAI NEWS TEAM

Obama’s overhaul of America’s health care system required employers offering medical insurance to their employees to cover some costs of their birth control. A controversial move. The crafts retail chain Hobby Lobby (along with 80 other groups) sued the American government in protest (due to religious objection), and the Supreme Court ruled in their favor: 5-4.

Did this decision open Pandora’s box? Will religious believers now object to every government mandate that violates their “consciences”? Justice Kennedy has said “No,” that the decision is strictly limited to family-run businesses that object to providing certain contraceptives to their employees. But Justice Ginsberg has said that the decision opens the door to the many religious groups now demanding “conscience” exemptions in every conceivable area.

Justice Ginsberg is not just imagining this scenario: Jonathan Rauch, in this month’s Atlantic magazine, reports a Christian dog walker refused service to a client who advocated the legalization of marijuana.

As Rauch points out, this dog walker's act of discrimination is only the tip of the iceberg. It’s easy to imagine believers, in the name of “conscience,” discriminating against gays, atheists, or scientists teaching evolution (to name just a few), and then running to the Court for protection when the law challenges them.

Some analysts have said that only time will determine if the Courts will pander to more religious groups seeking exemptions from government regulations. Given the Supreme Court’s Catholic-dominated conservative majority, it is hard to be optimistic, especially when a conservative judge like Antonin Scalia thinks Satan lurks behind every doorwayIn the future, Antonin Scalia may see “conscience exemptions”—also called “conscience clauses”—as a legal means to contain old Beelzebub.

In Great Britain, the courts have rejected such “conscience clauses” in several different cases. In one case, a Christian couple was rebuked for refusing to serve a same sex couple at their hotelIn another case, a marriage registrar was fired because she refused to conduct a civil partnership ceremony. To her, homosexuality is a sin. In these cases and others, religious objectors violated the so-called “equality laws”: just as the U.S. has the Civil Rights Act of 1964 and the equal protection clause of the 14th Amendment, Britain has the Equality Act of 2010, which codifies many other acts and regulations protecting especially minorities from discrimination. Recent court decisions have made it clear: no-one is exempt from obeying these laws, even if those laws violate people’s consciences.

In contrast to the U.S. Supreme Court, Great Britain’s Court does not pander to the religious. However, in recent speeches, Lady Hale, Deputy President of the UK’s Supreme Court, and the most senior female judge in the land, suggested that the British Parliament adopt a conscience clause as an “opt out” for groups uncomfortable with equality laws already on the books. In a recent editorial supporting Lady Hale, The Daily Telegraph stated, “It is obvious that there is a growing conflict between religious freedoms and equality legislation.” Unsurprisingly, some Christians have welcomed the suggestion, which they see as preserving their “religious freedom” against the alleged encroachment of equality legislation.

Christians, of course, see a “conscience clause” as the means by which their religious beliefs can trump the rules that everyone else is expected to obey. When providing a public service, you and I might be constrained by the law of the land, but religious Brits consider their conscience more important than ours, and thus they should have the opportunity to overrule a law if they strongly disagree with it. So, for example, those Christian hoteliers who refused to house the same-sex couple, and lost the resulting court case, would be indulged by a special legal clause making “special provisions or exceptions for particular beliefs.” In suggesting such a clause, Lady Hale has caused quite a stir.

To be fair, Lady Hale said that the same opt-out clause would have to apply to “any beliefs and none.” However, she has so far failed to answer at least two important questions:

  1.  How on earth could this clause be made workable? You can be certain that Christians would be the first to howl if people were allowed to cite “conscience” as an excuse for discriminating against Christians! They are presumably hoping for a clause that would be used only to support THEIR belief;
  2. Do we really want courts’ ruling on what is, and what is not, part of someone’s conscience? How strong must a belief be in order to qualify? Would we have judges asking, “How strongly do you feel this?” and, after a reply such as “a lot,” then ruling “OK: that counts”? Would they view piety displays—such as clothing or facial hair—as signs of sincerity, and then grant conscience exemptions?

Until Lady Hale can offer satisfactory answers, the proper path is clear: equality laws need to apply to everyone equally, religious or not, conscience-based or not. If we think that a rule would be too burdensome if applied to all, then we should have no rule at all. It is entirely valid to debate which rules to make, but, once made, equality laws must be obeyed by everyone. The flaw in The Telegraph’s reasoning is its view that “religious freedom” confers bonus rights upon the religious, rights the rest of us don’t have. Not so: “religious freedom” is a general right to freedom of thought and speech, not an opt-out from rules that apply to EVERYONE in society for entirely valid, democratically debated, secular reasons.

In the end, there is no “conflict between religious freedoms and equalities legislation.” There IS a conflict between equalities legislation and individuals’ freedom to indulge their preferences, and society should and in fact does debate the proper scope of such legislation. However, framing it as a religious issue—as if individual preferences matter to the religious—is misguided, and both Lady Hale and the Daily Telegraph, among others—should know better. The truth also is that UK Christians have grown too accustomed to special treatment and automatic privilege, and resent society’s presumption that they are no more equal than everyone else.

 

AAI News Team guest writers: 

Coel Hellier is Associate Professor of Astrophysics, Keele University, UK

Mark Kolsen is Managing Editor of the Richard Dawkins Foundation Newsletter