From the editor’s desk

Not equal before the law

22 January 2011

Britain has become a fairer society in its treatment of homosexual men and women, and that is progress. Social attitudes regarding almost all sexuality have become less judgemental, and homosexuals have benefited from that. How much of this is due to changes in the law is harder to estimate, although it is clear that the law has been following opinion rather than leading it. But not everyone has moved with the majority. An elderly couple who run a bed and breakfast in Cornwall, for instance, refused to let a room with a double bed in it to a gay couple, and have now been told that they broke the law and must pay compensation.

The reason they gave was that their firm Christian convictions had caused them to adopt a policy of letting such rooms only to married couples, and they had in the past also turned away unmarried heterosexual men and women who wished to share a bed. The gay couple in this case had a civil partnership, which meant their relationship was recognised in law as being equal to marriage. The court held that distinguishing in this way between marriage and a civil partnership was unlawful discrimination. This implies that if the gay couple had not had a civil partnership, the discrimination could have been lawful.

The Christian proprietors, supported by the evangelical campaigning group the Christian Institute, claimed that their right to practise their religious beliefs had been overruled in the name of homosexual equality. The right to religious freedom is protected in the Human Rights Act of 1998, but in cases that have come to court it has been given a narrow interpretation, more akin to a right to freedom of worship than a right to manifest religious belief in everyday activities. It certainly did not help Catholic adoption agencies when they were told that their access to public funds would be cut off unless they treated gay couples in the same way that they treated married ones. Unable to comply, they were more or less forced out of business as official church adoption agencies.

Compelling people to act against their conscience, or for­cing them out of business unless they are prepared to do so, can never be regarded as an unqualified victory for human rights. When rights clash, the appropriate way to resolve the issue is before an objective tribunal, which will weigh up the pros and cons on either side. That means there ought to be occasions where the right to religious freedom prevails, and the right not to be discriminated against on grounds of sexual orientation has to give way. But the latest case confirms, and as County Court Judge Andrew Rutherford said in his judgment, the balancing of one right against another is not what the law requires. In effect, gay rights trump religious convictions every time. There is something wrong with such a law. Judges should have discretion to probe further. Did the gay couple in this case, for instance, have a convenient alternative? Were the religious convictions merely a mask for homophobic prejudice? Above all, the court should be obliged to give due weight to the undesirability of overriding deeply held religious convictions, which is at least as wrong as offending the feelings of gay people. Religious believers have human rights too.