It is important to notice that we are presenting this discussion with the conjunction “and” instead of commonly used “vs”. It does not have to follow the lines of the famous song “The winner takes it all”.
But first let us remind ourselves what exactly are we talking about. As for the outline of LGBT rights, the situation has already been presented by our colleagues from ILGA Europe. So let us just have a closer look at the freedom of religion. There are many definitions and legal documents on this issue but in these walls we should first and foremost turn to the European Convention for the Protection of Human Rights and Fundamental Freedoms. In its Article 9, “Freedom of thought, conscience and religion”, it says:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Simplifying, we can say that the whole point of freedom of religion is that everyone should be free to believe whatever they wish, even if their convictions differ from the ones of the majority, and they should not suffer discrimination because of their minority views.
There are several key words here, but one that has caused the most controversy all over the globe is the notion of limitations. That the reason for limiting rights might lie in some other rights. It is easy, in the current political climate, to see religious freedom and LGBTI rights as two opposing values, permanently in conflict with each other. Human rights framework indeed does have competing values; its requirements do not always add up.
And this uncertainty causes fears and insecurity. On both sides of the debate. We, as LGBT persons of faith, in many ways understand the worries of both of them.
From the LGBTI perspective, it only seems logical that in the era of populist movements and universal nostalgia for some alleged, or even imaginary, simpler times in the past, that politicians promise people to bring them back into the times when they felt better, more secure, and generally more great than they do in the present. Nothing communicates present-day powers’, from Russia to the U.S., commitment to the past as effectively as reversals of LGBTI civil-rights progress, arguably the most rapid social change in history.
For the religious traditionalists, expansion of equality law has contributed to a sense that there has been an inversion. They feel they are now the minorities who require protection from an overweening liberal orthodoxy. Based on a small number of yet-to-be-finalised cases, conservative Christians now see themselves as potential victims of discrimination.
But what are those fears based on? What are the cases where two rights allegedly collide? What are the questions we seek answers to?
Here are just a handful of such questions:
Are churches and ministers of religion allowed to refuse weddings to same-sex couples?
· Are facilities owned by churches allowed to decline to service receptions?
· Are civil celebrants and registry officials allowed to reject weddings based on their religious convictions?
· Are religions allowed to reject homosexual candidates for ministry?
· Are church schools allowed to decline to offer married quarters to a teacher in a same sex marriage? Are such schools allowed to fire teachers who have entered same-sex marriage or even simply live in same-sex relationships?
· Are church-based hospitals and aged care facilities allowed to not provide services to LGBTI people?
· Are church-based schools allowed to teach church teaching on marriage or do they have to include more politically correct and less discriminatory narratives in their curriculum?
· Are businesses allowed to refuse to serve gay or transgender customers (pizza parlors, wedding florists and bakeries, etc.)?
· Are university-based students religious groups allowed to close themselves from homosexual members? And if they use public money?
· Would doctors be required to carry out gender-reassignment surgeries despite their religious beliefs?
· Which bathrooms should trans persons use – based on birth certificates or on their gender identity?
And many other similar issues falling on us from all the spheres of our lives, be it healthcare, housing, employment, education, adoption, or marriage-related services.
It may seem that these are new challenges, however, they are very similar to so many historical tensions between a religious conviction and anti-discrimination law. A sexist business owner, even if religiously inspired to refuse to pay women equally, is still required to pay women equally. Other examples include such morally polar cases as segregationist churches in the US who wish to discriminate on the basis of race, or pacifist Quakers looking to withhold tax that goes to defence spending.
So reconciling competing rights is something that humanity has done throughout history. And the increasingly popular assumption that protecting the rights of one group can only come at the expense of protecting the rights of another is dangerous and erroneous. We should not treat these rights as zero sum. Religious rights and LGBT rights both have legitimate claims for protection.
The key is simply to honour the principle that it must be a two-way street. The first part of the two-way street is easy for everyone. Our own beliefs are protected and others cannot impose their beliefs upon us. We all agree with that one. But the second part is less easy. Similarly, we must reciprocate by not seeking to impose our beliefs upon others. As an old Jewish saying goes, “Why do you drink cold water? You know I don’t like cold water!”
Our quest for civic harmony, our attempts to accord these rights require a painstaking respectful dialogue.
One of the difficult but required principles is that except for some specific cases of professional populist and/or ‘religious right’ movements, most people on both alleged sides are good people. As then-President Obama (perhaps reflecting on his own evolution) once acknowledged, “Americans of goodwill continue to hold a wide range of views on this issue.” And dehumanising the other side is definitely not a good solution. E.g., there are more than a billion people living in the countries where same-sex marriage laws were adopted. In none of those countries, have any of the dire warnings of bestiality and the killing of new-born babies come true.
Of course, we are not talking about criticism. Criticism should be acceptable. Churches and religious individuals may well criticise sexual behaviour which is not consistent with religious teachings, but they need to expect an equally vigorous response and criticism. It may be confronting but it is not the quelling of free speech, but rather the robust debate on which free speech thrives. Same applies to the human rights proponents. However, according to our observations, the religious side quite often has more problems with being criticised, which is partly a legacy of Christianity’s privileged position and domination over the western civilization for ages and ages.
So, sexuality and religion are both core to individual identity, and no wonder that they cause disagreements. The question is what do we do about it?
For now, the most obvious solution has been introducing religious exemptions.
Some argue that religious exemptions are a bad policy: they undermine the very purpose of anti-discrimination legislation. They introduce artificial opposition between equality and freedom.
However, so far there have been no significant other solutions to this problem, let alone ideal ones. So let us look a bit more at these exemptions. For the question remains as to when and how these exemptions should be allowed.
Several principles are worth abiding:
Exemptions should not be about creating new levels of discrimination. The general development vector should focus on resolving the situation and not introducing subsequent levels of complexity and pushing the world into a dead end.
For any protective measures (like in the bathroom cases or in the debate around children brought up by homosexual couples) there is a need of solid evidence. So far there is no universally accepted scientific proof of any harm to children in same-sex families. And neither do we observe any growth tendencies in predatory behaviour of people abusing the bathroom gender identity rules.
One of the proposed solutions is a balance between protecting religious institutions but not religious individuals, because religious exemptions for same-sex marriage and transgender rights could apply to three different activities:
services provided by religious organisations and offered only to adherents of that religion (it is generally accepted that religious entities should retain autonomy and no church minister can be forced to marry a same-sex couple),
non-religious services offered to the world at large by religiously owned or operated entities (and here we have to remember that the religious group has actively decided to offer its services to the world at large. In so doing, it has signalled that it is willing to serve people who do not agree with its religious tenets. Second, the services being offered are non-religious),
services provided by private organisations and offered to the world at large (again, the services are not magically different merely because they are for a same-sex wedding, be it baking a cake, providing flowers or leasing a property).
Brooklyn Law Professor Nelson Tebbe proposed so-called “social coherence” methodology resting on four key principles: avoiding harm to others, fairness to others, freedom of association, and government non-endorsement. Each of them requires special attention, which we cannot give within this presentation. However, I would like to stress the first one: avoiding harm to others. E.g. exemptions can be acceptable even in such notorious cases as Kim Davis, the U.S. clerk who refused to issue marriage certificate to a same-sex couple, as long as they are tightly tailored to prevent any visible impact, like service delays. Kim Davis as individual can recuse herself and her name from marriage licences, as long as the government’s message about marriage equality is not altered and the service is provided by a different clerk without artificial delay.
At the end of this presentation, let me also draw your attention to the fact that there is a group whose religious freedom seldom gets a mention. I am speaking about LGBTI persons of faith. A significant part of the LGBTI community members identify themselves as people of faith, Christians, Jews and Muslims included. How much is this ‘significant part’? Well, a survey in Australia gave the astonishingly high figure of 40%. However, their same-sex marriages can currently not be religiously solemnised, in many cases homosexuals or trans persons are banned from Communion or ministry. Clergy that would like to adequately pastor their LGBTI congregants have their freedom constrained. Of course, not all religious same-sex couples want church weddings. The point about true freedom is having the choice.
Let me conclude with a wonderful anecdote that always encourages me to seek compromises on this two-way street of social coherence. It shows that the situation is dynamic even within such tradition-based institutions as religion. For many years, the mayor of the Polish city of Gdansk had been banning local equality and pride celebrations based on his religious beliefs. Yet, being a person of goodwill, he did engage in this painstaking dialogue with the LGBTI community, he heard their stories and came to know them personally. And last year, the Equality March in Gdansk was opened and lead by the mayor who said: “I am here not despite being a Catholic. I am here because of being a Catholic. For perversion is not what people think it is. True perversion is spreading hatred”.