The right to believe is not the same as the right to do
We cannot allow discrimination, under the banner of religious belief, to infringe on other people’s rights in the public square, argues Naomi Phillips
It comes as no surprise to hear yet more uniformed and homophobic remarks from the Pope and, yet again, he is wrong.
Equality laws do not impose unjust restrictions on religious freedom; they do not seek to restrict freedom of expression. Rather, they protect individuals from wide and unjust discrimination by the state, employers, service providers and others, enabling people to be active, full citizens, able to participate in whichever sphere of society they choose, with very limited enforced restrictions.
Our domestic equality law has to be compatible with the Human Rights Act 1998 (HRA), which imports human rights protection from the European Convention on Human Rights (ECHR), to which the UK is a signatory. Freedom of belief and freedom of expression are two of the rights enshrined by the HRA and, as such, are principles that also underpin our equality law.
The right to freedom of belief is a fundamental, unqualified right — people’s right to believe what they want is absolute. But believing is not the same as doing, and in a civilised society people cannot just do what they want, when their actions infringe on other people’s rights. Whether that action is inspired by their beliefs is — and should be — in most cases largely irrelevant to that principle. In other words, the right to manifest beliefs is sometimes necessarily restricted in order to protect the rights of others, such as the right to equal treatment in employment.
Looking specifically at the Equality Bill and claims of unjust restrictions on freedom of religious expression, what is it that has got not only the Church of England Bishops in our parliament but now God’s own “representative on Earth” so riled? The Equality Bill basically imports and slightly redefines the law that is already in effect, and guarantees equality and protection against discrimination on a number of grounds, including religion or belief and sexual orientation. There are some limited exceptions from the law to permit discrimination when that is legitimate and justified, so for example restricting a caseworker post in a women’s refuge to women-only, or restricting a job as a Catholic priest to a heterosexual man (and contrary to popular misinformation, the Equality bill is not in any way trying to stop that).
In fact, of all the so-called “protected characteristics”, i.e. those which are give special protection under equality law including race, gender and disability, it is the protected characteristic of “religion or belief” which is granted the most and the widest exemptions from equality law. These wide exemptions are often justified on the grounds of protecting freedom of religious expression — religious people should be able to manifest their beliefs (i.e. discriminate and exclude those not in their gang) more so than other people. But generally — and this is the crux of it — the law prevents churches and other religious organisations from discriminating widely against others, such as gay people, especially when those organisations are working in the public sphere as employers or service providers.
Of course, the counterargument is that the legal opt-outs that are given to religion are in fact too wide, and grant undue privileges to religion and permit unjust interference with the rights of others, whether that is barring atheists from involvement in publicly-funded youth activities, to saying only practicing Catholics need apply for a job as a cleaner in a state-maintained “faith school”. In fact, it is this latter position that we should be most interested in if we are concerned about protecting basic rights and freedoms, such as freedom to associate. The rights to be treated equally and with dignity and respect in the job market or as a student also need protection.
Now, let’s return to the Pope. In a modern, liberal democracy, which enshrines principles of equality and human rights, some interference with the “freedom of religious communities to act in accordance with their beliefs” is necessary — but this should happen only where it is justified so as to protect individual freedom and prevent unjust discrimination by religious employers, registrars, doctors, teachers and so on. What the Pope, together with other religious leaders such as the Church of England bishops, is actually seeking is for religious people to be allowed to discriminate against others in employment, services, education and many other areas, unfettered by the laws that everyone else in society must abide by and respect. In a modern, liberal society, that position should be roundly opposed.
Equality legislation does not restrict individual freedom, it protects, enables and encourages it for all, not just the few.
Naomi Phillips is Head of Public Affairs at the British Humanist Association
This article is also published at Index or Censorship in a head-to-head with Brendan O’Neil.