This is a series of essays by a number of eminent legal and philosophical scholars from both sides of the Atlantic. They are based on the contributions made to a conference under the same title held in Oxford in 2012.
Religious freedom and gay rights is a substantial issue of our time and these are major and informative contributions to a debate that has been taking place over the last 20 years, leading to some very significant changes in the law and in public understanding of the balance between different rights. On the one side is the right to equal treatment under the law and on the other the right to freedom of religious conscience and faith. The gay issue – particularly as it affects the public understanding and provision for marriage – brings the matter to the fore. Behind it lies the question of how much the law should accommodate the religious conscience of those who find themselves at odds with the provision, in law, for equal rights. The question of gay marriage brings this to the surface.
Should the courts have accommodated Lillian Ladele, who, on the grounds of her faith, was not willing, as a registrar employed by Islington Council, to conduct the ceremony of civil partnerships for same-sex couples? The courts, all the way to the European Court, found against her. Catholic Adoption Agencies, in both the UK and the USA, have ceased to operate because they are required in principle to place children with same-sex couples. Should the law accommodate the faith of these agencies – who had a fine reputation for their work for children – but who would only place children with married couples? Was the US Supreme Court justified, on grounds of human rights, to rule in 2013 that it was unconstitutional for the federal government to define marriage in a way that excludes same-sex couples?
The essays from the UK are by John Finnis and Stephen Law with a short piece from Archbishop Philip Tartaglia. John Finnis argues strongly that the courts, in seeking to uphold the rights of gay couples, have undermined the right to religious freedom. He believes that the courts have moved away from seeking to apply the principle of accommodation to one of wholesale support for gay rights at the cost of religious conscience. Stephen Law, by contrast, argues that there is no reason to privilege religious conscience in these cases. He asks what the courts would do with secular people who did not want to have anything to do with gay marriage and rights. Both contributions are substantial; however, they do have a tendency to overstate their case. It is surely not right to lump gay relationships with adultery and fornication – as Finnis seems to do at points in his argument. Nor does Law's argument about the attitude of non-religious people take away from the important regard of the law for religious conscience and the rights of those who belong to major religious institutions whose faith stands against definitions of the secular law on the nature of marriage. Some accommodation between these two views might help us all.
The four contributions from the USA open up for the reader the complexities of the federal structure of government and the strict separation of the powers of the executive, legislature and law in that nation. In a culture rooted in a deep attachment to liberty, it is not surprising to find not only deep divisions of culture and opinion but also variable practice across the whole nation. It is interesting that the Supreme Court, with a majority of its judges taking a conservative position, nevertheless by the narrowest of margins made the judgment in 2013 in favour of the inclusion of same-sex couples within the public understanding and provision for marriage. This, despite the fact that the USA is a nation with a strong and powerful conservative evangelical lobby. Linda McClain's careful disentangling of the recent history and the arguments on both sides is a particularly informative essay.
The opening up of the issue as it affects Europe introduces both a different cultural history and also the way in which different cultures have sought to address the subject. The Italian experience of enabling the rights of same-sex couples while avoiding integrating these with marriage, as described by Andrea Pin, is a particularly interesting example. That, to a measure, mirrors what happened in the UK before same-sex marriage was provided for in law. Again, the cultural history of a nation with the power of the Vatican at its heart and yet with a strong libertarian and radical tradition, lies behind the way the law has been made to work.
This book is a text book on the issue of gay rights and is substantial in its contribution. How we both protect religious liberty in public life and protect individual rights for all remains a live and vital issue for the future humanity of our diverse modern culture.
