Jerome Taylor: Religious freedom is not an absolute right

At the heart of this  legal and moral debate is the question of  competing rights

Jerome Taylor
Tuesday 15 January 2013 19:45

The European Court of Human Rights gets a regular kicking in the British press, often unfairly. So it’s good to see that the judges in Strasbourg have come up with a series of careful and nuanced rulings on the issue of religious discrimination that are a cracking advertisement for exactly why we need such a court.

At the heart of this legal and moral debate is the question of competing rights. Religious freedom is a vital human right recognised by both UK and European law. But it is not an absolute right. That’s because occasionally the religious views of one person may impinge upon the equally valid rights of another group of people.

Religious opposition to same-sex relationships is the most common current example of this dilemma. Those with theologically inspired opposition to same-sex relationships are allowed to be anti-gay. They can disapprove of same-sex relationships, publicly speak out against them and say gays are damned to eternal hellfire if they like.

But where the courts are often asked to draw a line is when a religious person directly impinges the rights of a gay person. It’s a classic example of the liberalism espoused by J S Mill. Generally, we should be allowed to do, say and believe what we like – so long as what we do doesn’t harm (and that does not include causing offence) others.

By backing Britain’s legal system in three out of the four cases the Court has effectively reinforced a point it has made many times before. But it’s an important one to restate again and again: religious rights don’t trump rights of others unless there is a very good reason. A balance has to be struck and in these cases, the Court ruled, the British courts had done the right thing.

For the Christian lobby, who have portrayed these legal fights as part of a wider battle to counter faith being marginalised and persecuted, it’s a loss. What the European Court of Human Rights hasn’t done is give Christians – or any other religion – carte blanche to discriminate against others on the grounds of belief. And it means future claims where Christians have discriminated against gay men and women when offering services (such as a B&B room) and then pleaded religious freedom are less likely to succeed.

But the Christian lobby shouldn’t feel too down because there is a silver lining. The legal point that competing rights don’t automatically trump each other might protect them one day. After all, if a gay B&B owner refuses to accommodate a Christian because of their beliefs; or a gay person refuses to marry a Christian couple; or provide them relationship counselling – there’s a strong chance they’d win their case in the courts for the same reasons.

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