Analysis: religion, equality and the clash of rights

24 Nov 2014 Nick Garbutt    Last updated: 26 Nov 2014

Equality Cartoon
Equality Cartoon

The “gay cake” controversy has degenerated into a row between those who support gay marriage and those who do not. Scope probes further into a clash of human rights.

Imagine this. You are a police officer and have arrested a man who has kidnapped a young child. He is refusing to tell you where his victim is. The hours are passing and you are very concerned. The youngster has no food or water, you believe he may be injured, perhaps seriously. What would you do? Would you be tempted to threaten to hurt him, really badly, to get the information you need, or would you wait until his lawyers arrived and let the law take its course?

This is not a hypothetical example this is a real case that happened in Frankfurt in 2004.

Child murderer Magnus Gafgen had lured a 12 year old boy to his apartment, suffocated him and dumped his body by a lake. He pretended the boy was still alive and demanded a ransom from his parents who paid it.

The police were watching the drop off point. They arrested him and, believing the child was still alive, told Gafgen he would be tortured if he did not tell them where he was. They were not bluffing, a specialist officer had been drafted in to do this, under medical supervision. Gafgen cracked, confessed everything and led police to the body. The torture was never carried out.

Good policing or a very serious case of violating Gafgen’s human rights?

Can torture be justified?

This landmark case went before the European Court of Human Rights in 2010 and the judges found in Gafgen’s favour. They decreed that torture was never justified and so the right not to be tortured was absolute and no circumstances ever justified its use.

This is an example of an absolute right. Most rights are not, they have restrictions and limits: something that many struggle to understand. And there are plenty of examples in Northern Ireland: the right to protest or march for example is not an absolute right, it has to be balanced against the rights of others.

The gay cake row is just the latest of a series of ferocious clashes around freedom of religion which is guaranteed by the International Covenant on Civil and Political Rights which states that everyone has the right “in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

The covenant could not be possibly clearer. However there is a caveat: “Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

The clash is often with equality legislation. It is unlawful to discriminate against people on the grounds of their gender, sexuality or political beliefs in the provision of goods and services. This can, and often does clash with some peoples’ “observance and practice” of their religion.

Are religions being suppressed?

Recent UK cases include:

  •          Lillian Ladele a registrar with Islington Borough Council who claimed discrimination because she was being instructed to carry out same sex civil partnerships by Islington Borough Council despite them being contrary to her religious views.
  •          Christian magistrate Andrew McClintock was forced to step down as a magistrate because he objected to children being adopted by gay couples.
  •          Muslim Classroom assistant Aishah Azmi was suspended from a school in Yorkshire for wearing a veil in class in the presence of men.

What all these have in common is a dilemma whereby people in the workplace are being expected to do things which run contrary to their religious beliefs – and it is this issue of the rights and freedoms of others which is usually at stake.

In some cases this can preclude people from certain jobs – so, for example a registrar who objects to same sex civil partnerships may have to think again about career choices, ditto for those who are involved in the adoption process and for Muslim women who wear the veil, the teaching profession may no longer be an option.

In that context it is not difficult to understand how some faith groups are so incensed. Many believe that secularism is being enforced upon them and legislation being used to suppress expression of legitimate beliefs. They claim that human rights’ legislation has its roots in the fight for freedom of religion and that the law is now being turned against them.

When Scope caught up with Human Rights Commissioner Les Allamby last month we asked for his comments on the general issue of faith versus rights. Our conversation pre-dated the decision of the Equality Commission to take Ashers Bakery to court. His comments were therefore on the general issue of when rights clash and not made in that context.

Whilst he cites the right not to be tortured as an absolute right, he stresses that such rights as freedom of speech and assembly are not untrammelled because there are, inevitably other people who you have to take into account when you seek to exercise them.

“There is a very clear debate about the interface of faith and belief and freedom of speech and human rights. Freedom of speech is a qualified right so yes, if you have a particular belief based on your religious faith then nobody can say that you can’t have that belief. But if you move from that belief to discriminate against somebody, because of their sexual orientation for example, then there can be issues. Where the law of the land says you can’t discriminate then you can’t discriminate because you cannot opt out of the law of the land. I understand the difficulties that places people in who have very strongly held beliefs, but I repeat you cannot opt out of the law of the land.”

With many politicians in Northern Ireland stating that their view on policy and governance is grounded in their respective faiths, it is difficult to see this argument going away, or how it will be resolved.

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