Think Twice, Lady Hale
WRITTEN BY COEL HELLIER AND MARK KOLSEN, GUEST WRITERS OF AAI NEWS TEAM
Obamaâs overhaul of Americaâs 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 Pandoraâs box? Will religious believers now object to every government mandate that violates their âconsciencesâ? Justice Kennedy has said âNo,â 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 âconscienceâ exemptions in every conceivable area.
Justice Ginsberg is not just imagining this scenario: Jonathan Rauch, in this monthâs 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. Itâs easy to imagine believers, in the name of âconscience,â 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 Courtâs Catholic-dominated conservative majority, it is hard to be optimistic, especially when a conservative judge like Antonin Scalia thinks Satan lurks behind every doorway.Â In the future, Antonin Scalia may see âconscience exemptionsââalso called âconscience clausesââas a legal means to contain old Beelzebub.
In Great Britain, the courts have rejected such âconscience clausesâ in several different cases. In one case, a Christian couple was rebuked for refusing to serve a same sex couple at their hotel.Â In 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 âequality lawsâ: 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 peopleâs consciences.
In contrast to the U.S. Supreme Court, Great Britainâs Court does not pander to the religious.Â However, in recent speeches, Lady Hale, Deputy President of the UKâs Supreme Court, and the most senior female judge in the land, suggested that the British Parliament adopt a conscience clause as an âopt outâ for groups uncomfortable with equality laws already on the books. In a recent editorial supporting Lady Hale, The Daily Telegraph stated, âIt is obvious that there is a growing conflict between religious freedoms and equality legislation.â Unsurprisingly, some Christians have welcomed the suggestion, which they see as preserving their âreligious freedomâ against the alleged encroachment of equality legislation.
Christians, of course, see a âconscience clauseâ 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 âspecial provisions or exceptions for particular beliefs.â 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 âany beliefs and none.â However, she has so far failed to answer at least two important questions:
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 Telegraphâs reasoning is its view that âreligious freedomâ confers bonus rights upon the religious, rights the rest of us donât have. Not so: âreligious freedomâ 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 âconflict between religious freedoms and equalities legislation.â There IS a conflict between equalities legislation and individualsâ 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 issueâas if individual preferences matter to the religiousâis misguided, and both Lady Hale and the Daily Telegraph, among othersâshould know better. The truth also is that UK Christians have grown too accustomed to special treatment and automatic privilege, and resent societyâs presumption that they are no more equal than everyone else.
AAI News Team guest writers:Â
Coel Hellier is Associate Professor of Astrophysics, Keele University, UK
Mark Kolsen is Managing Editor of the Richard Dawkins Foundation Newsletter