It shouldn’t take a Pope
Pope Benedict has attacked British equality legislation, claiming it counters free expression. Is he right? Brendan O'Neill and Naomi Phillips go head to head
03 Feb 10

HEAD TO HEAD: Brendan O’Neill argues the pontiff is right, Harriet Harman’s Equality bill is profoundly intolerant. Naomi Philips says in a civilised society the right to manifest beliefs must sometimes be restricted in order to protect the rights of others

Brendan O’Neill: The state cannot dictate people’s beliefs

It is a shocking indictment of the state of progressive politics in Britain that it has taken Pope Benedict XVI — the head of a backward church — to put the case for freedom of conscience against the UK government’s Equality Bill.

Where liberals in Britain have tended to defend the Equality Bill, and to demand its speedy enactment and enforcement, it has been left to a man in a frock from Rome to point out the serious threat posed by the bill to “the freedom of religious communities to act in accordance with their beliefs”. Who would have thought that the Pope, with his well-documented flirtation with the Hitler Youth and his in-built Catholic disaste for dissent and freedom of choice, would be on the side of the angels in a debate about liberty?

Championed by Harriet Harman, the Equality Bill brings together various EU directives and pieces of anti-discrimination legislation with the aim of forcing public bodies to reject all forms of discrimination on the basis of class, race, gender or sexual orientation and to take equality seriously.

It sounds very nice. Who in their right mind could be in favour of something as ugly as discrimination? Yet if we are serious about freedom of association and the right to organise — two key rights in any democratic society worth its name — then we have to accept the right of certain institutions to discriminate, to reject people from their ranks, to refuse to treat some people equally. Indeed, freedom of association, freedom of religion and the right to organise politically are, by their very nature, dependent on discrimination.

Freedom of association and organisation inevitably involve choosing who to associate and organise with, and therefore excluding those who, for whatever reason, do not live up to the standards, belief systems or membership criteria of one’s organisation.

This would allow a gay men’s clinic to refuse to grant a straight man an appointment, on the basis that it is a discrete organisation that has decided to work with only one section of society. It might mean that a Catholic adoption agency refuses to deal with gay couples, on the basis that its belief system looks upon homosexuality as a sin. It might mean that a hikers association refuses to grant membership to wheelchair-users. And it might mean that an odious party like the British National Party refuses to allow black or Asian people into its ranks, on the basis that it considers them inferior.

Now you — like me — might not like some of the consequences of allowing certain organisations the freedom to discriminate, but we must recognise that such forms of discrimination are inevitable in a democratic society. The alternative is to recognise the right of the state to interfere in religious groups and political parties. To effectively force them to rewrite their constitutions and alter their belief systems. This would allow the state to determine the make-up and outlook of specific organisations, and it would spell the end of free association and the right to organise without state interference.

We can already see the consequences of this tyranny of equality in the way that the BNP is currently being forced, under threat of legal sanction, to rewrite its constitution and to allow ethnic minorities to become party members. Of course the BNP’s constitution is racist and objectionable to anyone with a shred of decency — but this test case, where the authorities are effectively dictating to a party what it can believe in and who it can associate with, is also objectionable.
It is a profound attack on the right to political organisation.

You might not care about the BNP’s misfortunes — and some liberal commentators have been thoroughly enjoying them —but you should care about the precedent being set, where the state-defined idea of “equality” is being used to justify an extraordinary intervention into a political belief system. After the racists, who will be next? A religious group? A radical gay outfit? A Black Power organisation?

More than 50 years ago, Hannah Arendt argued that in the sphere of belief and politics, “the right to free association, and therefore to discrimination, has greater validity than the principle of equality”. Those words should echo down the decades.

Of course, a distinction must be made between public bodies such as the NHS, the education system and workplaces not built on a specific belief system, where discrimination would be intolerable, and private or political organisations, where discrimination is simply a fact of life.

Inequality in the public sphere is something really worth protesting about, since public bodies that deny people healthcare or education or work or the right to adopt are denying those people their full humanity and severely limiting their choices and standards of living. However, private, political or religious bodies that deny access to individuals are simply saying: “Please go somewhere else. Our belief system means we can’t deal with you.”

We might not like that, but the alternative — organisations defined and designed by state diktat — is almost too terrifying to contemplate. Seriously, did we really need the Pope to open our eyes to this fact?

Brendan O’Neill is editor of Spiked Online

Naomi Phillips: the right to believe should not be allowed to infringe other rights

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