Our freedoms of conscience and association have taken a bit of a beating over the last few years, on both sides of the Atlantic. From florists to bakers, B&B owners, pizza parlours, more bakers, even whole states, the redefinition of civil marriage laws to include the recognition of same-sex couples has led to those who dissent from this change, and ethically object to supporting same-sex relationships, being falling afoul of ‘equality’ legislation and secularist intolerance.
Little surprise, then, that some political parties have tried to attract support by promising to allay the concerns of religious voters that they might be penalised for their beliefs. UKIP recently released their ‘Christian manifesto’, a series of policies aimed at attracting the support of Christians ranging from homelessness and human trafficking to abortion and even Church repairs.
In one section dealing with same-sex marriage, after having stated that they would not repeal the Marriage (Same-Sex Couples) Act (as this would be ‘unethical’ and ‘unfair’), UKIP promised to “extend the legal concept of ‘reasonable accommodation’ to give protection in law to those expressing a religious conscience in the workplace on this issue”.
On its own, this doesn’t promise a great deal. The legal principle of ‘reasonable accommodation’ in the UK is still in its infancy, and (as can be seen from the reference to the “expressing a religious conscience in the workplace”) more exactly signifies the accommodation by employers of the religious scruples of their employees, so long as this does not unreasonably burden them.
To ‘extend’ such a concept would probably involve, to use an example employed by UKIP Deputy Chairman Suzanne Evans recently, greater protections by Christian registrars who object to officiating at same-sex weddings. It might also give cover to Christians who want to wear a Cross or Crucifix at work, despite their employers general ban on the wearing of jewellery.
All very moderate and uncontroversial, you might think, and simply the integration of common sense and rational compromise into law. Not everyone, however, feels the same way. In the wake of the manifesto being published, some took great umbrage at the very idea of it, choosing to interpret the policies it contained as a sort of ‘homophobe’s charter’.
Some attacked on principle: the right of the state to impose anti-discrimination laws they believe flows from the fact that property rights were created by the state. Others focused on pragmatics: the idea of expanding reasonable accommodation was accused of being a proposal that, if ever implemented, would give carte blanche to unjust discriminate for anyone prejudiced against same-sex attracted people.
How would this be the case? Simply because, it was claimed, it would be impossible to determine whether such people were genuinely motivated by religious conscience, or really by ‘bigotry’ (defined as ‘prejudice’, rather than its actual meaning of ‘close-mindedness’). Such an action would thus declare ‘open season’ on same-sex couples for anyone who wanted to deny them goods and services for any reason, and consequently reduce their lives to misery. All so that UKIP could appeal, and garner the votes, of the nastier sorts of religious zealots.
Quite the damning appraisal! Yet such criticisms are truly nothing more than hysterical nonsense.
Take the pragmatic points, first. It has already been pointed out that ‘reasonable accommodation’ has a very limited application, but let’s say for the sake of argument that what UKIP means is that they would legalise discrimination for those who ethically object to same-sex marriage and relationships more generally. Would such an extension mean an unlimited right to discriminate based on someone’s sexual orientation? The answer should be ‘obviously not’, since there already exists a rational conceptual limitation that the law could readily use to avoid this problem. This concept is called ‘material cooperation’.
Moral philosophers distinguish between various ways in which we can cooperate in the actions of other people, and thus the responsibility we have in doing so. ‘Formal cooperation’ is when someone cooperates with someone in the committing of an act with the full mental assent to the act being committed. If, for example, I encourage someone to rob a bank, or help them in the planning (even if not the execution) of their robbery, then I am ‘formally cooperating’ in their crime.
‘Material cooperation’ on the other hand is the provision of material support for an act, even whilst not wanting the act to be committed. Such support can be direct or indirect. If I were to willingly help the bank robbers load their stolen goods into the getaway vehicle, then I would be directly materially cooperating with their robbery. If however, I were to sell guns or a getaway vehicle to them, knowing what they would use these things for, I engage in indirect material cooperation with their actions.
As a real life example, when the German chemical manufacturer I.G. Farben provided the Nazi Government with Zyklon B during the 1940s, if (hypothetically) its directors had known of but not approved the uses to which the SS would put their gas, they would have been guilty of close indirect material cooperation in the Holocaust.
For a Christian, any close cooperation in an unethical act, whether formal or material (direct or indirect), is itself unethical. So, since Christians (as with members of other similar religions, or ethical philosophies) believe sexual acts to be moral only within marriage – defined as the sworn conjugal covenant between a man and a woman – any cooperation in the celebration and condoning of any other sexual act or lifestyle would be for them, unethical. To bake a cake for a same-sex ‘wedding’ then, or provide flowers for it, or to facilitate the event by officiating at it, or even provide accommodation in which a same-sex couple could be sexually active, would be a violation of their moral beliefs.
Note however, the limitation. Such a situation could not arise where there was no cooperation with an act they regard as unethical. It is not unethical material cooperation to, say, provide a meal to a same-sex couple, or sell them an umbrella or a computer, since none of those actions constitute any kind of cooperation with an act to which anyone could have a moral objection.
If an extension of ‘reasonable accommodation’ were encoded into law, and the principle of material cooperation referred to as a guiding principle, the conscience protections thus created would apply only to a minority of services (e.g. the provision of services to same-sex weddings, the provision of printing services for events that celebrate same-sex relationships, the enabling of sexual acts between men or between women, etc.).
It would also apply to a minority of people, since such protections would only apply to those whose religious or ethical beliefs led to their conscientious objection. So, if reasonable accommodation were to form a protection for prosecution under anti-discrimination laws, a court who was considering whether to prosecute a person who claimed to be religious could easily investigate their religiosity or ethical sincerity by looking at their Church attendance, religious or philosophical activities, and other signifiers of piety or genuine belief. Priest or ministers could act as witnesses to a person’s authenticity, and in the absence of evidence of a proper Damascene conversion, it would surely be easy to distinguish those who decided to take a suddenly convenient moral stance from the truly devout.
The UKIP proposal, even interpreted to the unnecessarily radical extent that it has been, is therefore perfectly workable. That its opponents could not readily see this tells us all we need to know about the limits of their own moral knowledge and intellectual imagination. Their points from principle however, are equally inane. Property rights, contrary to what some have argued, are natural rights, and historically recognised rather than created by the State. Even if this were not the case, such laws constitute a clear limitation of freedom of association. (To argue to the contrary of either of these points is utterly incoherent for anyone who purports to be either liberal or libertarian.)
Regardless, if we accept (what is undoubtedly) the consensus position that unjust forms of discrimination are a sufficiently pernicious evil for property rights and freedom of association to be limited by its prohibition, we nonetheless also accept that not all forms of discrimination are unjust. For a production of ‘Annie’ to insist that the person playing the eponymous role should be a small white girl, rather than a big black man, is not an unjust form of discrimination. Nor would a court with any common sense consider it illegal activity. The segregation of men and women into separate lavatories is ‘discrimination’, but again seen as an entirely just one.
Common sense then, allows us to also recognise that allowing someone to refuse to accept someone’s business on moral grounds can also be a just exception to the general rule. Would we expect a printer who is also a member of an ethnic minority to be obliged to provide his services to the BNP or the National Front? If a British equivalent of the loathsomely nasty Westboro Baptist cult were to ask a bakery owned by a same-sex couple to bake a cake with the words ‘God Hates F*gs’, or that celebrated an anniversary of the beginning of their funeral picketing activities, would it be right to force them to do so?
The answer, again, is ‘of course not’. In a truly free and just society, reasonable accommodation can be made with the consciences of individuals by special exemptions from law. If we can accommodate Quakers and other minority conscientious objectors to violence on the grounds that this is their religious liberty, then surely it is not beyond the wit of Government to accommodate the minority of us who object to same-sex lifestyles from cooperating in celebrating or encouraging them?
Opposition to such accommodation not only defies fully informed and sensible reason, but is ironically authoritarian given the self-declared ‘tolerance’ of those who advocate it. It is also clearly the more ‘bigoted’ position when made under the grossly irrational assumption that anyone who may ethically object to same-sex ‘marriage’ must somehow hate or be prejudiced towards same-sex attracted people, an assertion that is itself absurdly prejudiced and little more than a thought-terminating cliché.
Those who are members of the authentically ‘liberal right’ should eschew such illiberal rhetoric and narrow-mindedness, give the UKIP proposal further thought, and consider how better we can secure the rights to a free conscience in a truly free and tolerant society.
Peter D. Williams is a Catholic writer and speaker. He is a Council member of the Catholic Union of Great Britain