David Pannick, QC
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The debate in the House of Lords last month on the Equality Act (Sexual Orientation) Regulations 2007 raised in acute form the important question of what degree of protection our society should recognise for religious opinions. The House of Lords was correct to reject the contention by religious groups that further exceptions should be recognised to the duty not to discriminate on the ground of a person’s sexual orientation.
The regulations implement the Equality Act 2006 by prohibiting discrimination on the ground of sexual orientation in the provision of goods and services to the public (for example, in shops and hotels), in education and in the rental and sale of premises. They prohibit a restaurant from throwing out a gay couple for holding hands, or a hotel from refusing two lesbians a double room or a school excluding a child because of the sexual orientation of one or both of the parents.
Regulation 14 exempts religious and belief organisations, and those acting under their auspices, where that is necessary to comply with the doctrines of the organisation or to avoid conflicting with the strongly held beliefs of a significant number of a religion’s followers. So it will remain lawful for a church or mosque to refuse membership of its congregation to a gay man in accordance with its religious doctrine.
A priest will not be required by law to bless the union of a lesbian couple.
However, the draft regulations stated that where a religious organisation provides services to the community on a commercial basis or on behalf of and under contract with a public authority, then it must comply with the principles of nondiscrimination. A concession was given to faith-based adoption and fostering agencies so that the new regulations will only come into force on January 1, 2009 after a transition period of 20 months. But thereafter, a Roman Catholic adoption agency must not refuse to consider homosexual parents. It must act by reference to the best interests of the child.
Dr Rowan Williams, the Archbishop of Canterbury, and Cardinal Cormac Murphy-O’ Connor, the Roman Catholic Archbishop of Westminster, each wrote to the Prime Minister objecting to the regulations as an infringement of religious freedom. The Archbishop of York complained during the debate in the House of Lords on March 21 that the regulations create a “legal sausage machine”, requiring everyone to “come out the other end, sanitised and with our consciences surgically removed”. The Bishop of Southwell and Nottingham objected that the regulations were “a new kind of secular dogmatism”.
You have a right to believe whatever you like, however absurd it may be. A judge cannot determine whether (as the Vatican is now suggesting) the late Pope John Paul II recently performed a miracle by interceding from Heaven to cure a nun of her Parkinson’s disease after she wrote his name on a piece of paper. Courts will not decide whether, as Hamlet observed: “There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy.”
The regulations do not prevent anyone from believing whatever they like for whatever reason they wish. But although freedom of belief is absolute, freedom to manifest belief is strictly limited. This was confirmed by the law lords last year when rejecting the claim of the schoolgirl who wanted to wear a particular form of religious dress in defiance of the school uniform policy.
The right not to be discriminated against on the ground of sexual orientation is a fundamental right, any interference with which requires substantial justification. That the discriminator is acting by reference to his or her religious beliefs cannot of itself provide a justification, any more than if the provider of the services (perhaps Boers who emigrated from South Africa after the National Party lost power) have a religious objection to dealing with people of a different race.
No doubt the State should interfere with the manifestation of the religious beliefs of others only where that is justified. But the religious objector is entitled to no special protection in this respect. If I run an adoption agency and believe that it is wrong for children to be adopted by homosexuals, the fact that my views are based on logic, careful study of reports, and an expertise in child psychology cannot make my beliefs less entitled to respect than if they are based on a belief that God told Moses or Muhammad the right answer.
These are increasingly important issues as religion continues to promote strong feelings in large numbers of adherents. One of the gravest challenges faced by an open society is how human rights law should respond to those seeking to use freedom of religion to impose a closed society on others.
The author is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford

David Pannick, QC, is a barrister at Blackstone Chambers and a fellow of All Souls College, Oxford. He writes a column for The Times Law section every fortnight
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Where do you folks pop up from? The absolute intolerance of people aligned to a religion never ceases to amaze me. Mr. Pannick QC is correct on every point in his article and all should be guided by it. The fundamental rights he speaks of need no enumerating in charters, they are the stuff of natural justice. Incidentally the same natural justice that allows religions the right to exist and people the right to belong to them in all their shades and variants.
Don't make the issue larger than it is. Adoptions will always be governed by the best interest tests. Gay, straight or bisexual, children in our country (and the world) need safe homes and love. Those of you so vehemently opposed to this being provided by people whose sexual orientation offends your religious sensibilities, please shut up and go offer your heterosexual selves as prospective parents.
The law mercifully is guided by justice and in that I remain hopeful.
Michael, Whetstone, London
I find it appalling that supposedly educated, cultured people can speak of race being genetically predetermined, but not sexual orientation. Some lgbs have known since age 5 that they were attracted to members of the same or both sex. Some have perhaps realised years later, after having gone through marriage (as conventionally defined) and begotten children. But ultimately it is always a choice whether one chooses to manifest one's sexual orientation, just as those persons of heterosexual disposition choose to manifest their sexual orientation. Choice is paramount and choice should be celebrated, because a society which denies to all their ability to choose who they are and whom they should love is dogmatic and authoritarian. Mr Pannick defends the civil liberties of gays, lesbians and bisexuals just as he would defend the rights of heterosexuals. And since when did figures for how many lgbs exist matter? There can be no trade-offs, 1 lgb is as deserving of respect as 1 heterosexual.
Jennifer, London, UK
Mr Pannicks asserts, that "The right not to be discriminated against on the ground of sexual orientation is a fundamental right". Says who? The european convention on human rights? Since when did they define right and wrong, they or the UN or whichever body has usurped the power to direct our lives these days.
According to Judao-Christian values, based on what God said to Moses and other prophets and through Christ himself over a period of 5000 years or so, no such fundamental right exists. Is the tried and tested wisdom that has stood the test of millenia to be case aside on the whims of unelected bodies seeking to give themselves legitimacy and moral authority when in reality they have none, and are trying to achieve it the wrong way by appealing to the baser parts of mankind's nature? Mankind universally seeks to excuse his behaviour, and not to be held accountable for it, and to avoid the consequences of his own actions - true religion seeks to change behaviour, we need this
James, Paris, France
It is disappointing to find such confusion between race and sexual orientation. Race, like gender, is genetically determined while sexual orientation is not. Where is the evidence for a gay gene? Even Stonewall promotes the interests of gay men, lesbian women and bisexual people. Many in the gay lobby emphasise their sexual acitivity as a lifestyle choice which is not predertermined. How many gay people are there? Statistics in different reports vary greatly - most groups knwow their membership.
It is pleasing that David Pannick stresses the best interests of the child, an important point in a debate that has stressed rights of people to adopt rather than the importance of children's needs. It would be helpful to read reserach reports showing how the best interests of the child are not served by having a mother and a father of different sexes. What criteria are used to decide that a couple of the same sex offers a better family structure than one that models gender comlimentarity
Rosemary Summerfield, Bath, England
David Pannick on one hand seems to imply that truth is only relative whilst on the other seems to say only his view is absolute truth. The only reason he can say what he says is because he is in a country whose law has been (until recently) christian based so allowing christian virtues such as love, mercy and forgiveness to flourish and so create an environment where freedom of expression can exist. What is so ironic is that he is not allowing expression of real truth but expects his truth to be the last say.
Ian Grant, Romford, Essex
David Pannick's views are probably based as much on ideology ( Post Modern/ secularist/ humanist/ marxist) as a Christian's world view. As much as his ideology would claim to be founded on irrefutable science , no homosexual gene has been found . The reason some practice sodomy and lesbian acts are as long as a piece of string , but no human being is programmed or pre-deternined to perform such acts. We all have free will. We choose and thus are responsible for the way we behave . The NHS Blood and Transplant Service say that over the ten years up to 2004 , 15, 485 gay men were diagnosed with HIV as opposed to 18,349 heterosexual people . I make this out to be about 46% of infections being caused by a minority who represent 5% of the entire population.
Finally Mr Pannicks assumption that his world view equals an open society and Christianity equals a closed one is a concept plucked from God knows where and made without a shred of reasoning. What do they teach in law school today?
david skinner, child okeford, england
The fundamental problem that Christians now face is not one of homosexuality at all. It is one of morality. The Christian faith has always held that outside of marriage is sinful - heterosexual, homosexual whatever it makes no difference. If I was running a B & B and a couple came to stay who were not married, I would, as a Christian and a father, want the right to refuse them a double room. I believe that I have a duty to ensure that certain standards are upheld in my home. This is not homophobia at all, and it saddens me that the Church is so often accused of rejecting certain types of people simply because they hold a strong view.
When a woman caught in ery was brought to Jesus (to try and trap him), his response was "let he who is without sin cast the first stone", and when all her accusers left his words to her were "neither do I accuse you, go and sin no more." He didn't pretend that what she did was OK, but he showed her love, not condemnation
Chris McCanna, Worthing, West Sussex
I am a fundamentalist Protestant Christian and I basically welcome the SORs. In normal business, public service and educational matters everyone has the right to equal access. However there are conflicting rights here. The right to practice ones religion does not trump ethnic and sexual rights except where the religions doctrine and morality controls the religions followers. In this case the right of freedom of conscience trumps all the other rights. According to the European Commission on Human Rights, Freedom of Conscience (the right to not be forced to do something which will cause a person to feel shame or guilt) is absolute. If a person feels guilty before God for promoting homosexuality by printing publicity leaflets for a gay dating service, then he has the right to refuse. However this British law does not give him that right. This is what the archbishops are trying to say.
Des Byrne, Aberdeen, Scotland
I perhaps should point out, as a devout disciple of Christ; Romans 13:1-7, Titus 3:1, 1 Peter 2:17, Matthew 22:21.
I believe the secular authorities to be not the decent abode of a good Christian, our lives being pledged to God, I do believe that the secular authorities hold office and make laws under the protection of God, for the protection of ALL.
The carnal churches, basing their authority in doctrine and man made tradition rather than the plain and easily understandable ministry of Christ Jesus, do more harm than good to not only man, but also to the teachings of Christ Jesus, and therefore God Himself.
Whatever you may think of others, it is wiser to keep your own counsel than to attempt to force policy decisions upon the authorities based upon your own thoughts and feelings. It is also up to you how to reconcile the hate, fear, loathing, whatever you feel for others, with your salvation, and your God. It is NOT up to the secular authorities to salve your consciences for you.
Jennifer Hynes, Plymouth, UK
The right of choice is a far more fundamental and precious right and trumps most other arguments.
gwilym rhys-jones, costa del sol, spain
I would firstly like to point out that I am an openly gay 18 year old, currently in a relationship, and, furthermore, I am a practicing Christian; specifically a Catholic.
I have been half-heartedly following the whole "religion-versus-homosexuality" debate that seems to have overtaken the media recently. I have to say that I am disappointed both in the Church and the gay community. It gets BORING.
The Church is doing what it is famous for: being a stick in the mud. Even with increasing secularisation it is obvious to us who recognise Church practice that it will be a long time before gay men and women are given equality in the Church. (Women have yet to achieve this!) I hoped that more homosexuals would have realised this!
I believe that my sexuality is not a choice, it is a decision made by God. And no human has the right to dispute that. It is between Him and I. I am no different from a heterosexual male, and should not be treated differently under the guise of religion.
Jake, Cardiff, Wales
Alex and David are missing the point entirely. There is a difference between making someone do something that is against their religious belief system as generally recognised, and preventing someone from doing something to someone else based on their belief system. If a religious agency engages in facilitating adoption, to force them to facilitate adoptions for gay couples is in essence compelling them to engage in a practise contrary to their beliefs. Furthermore, there are alternatives for gay couples to adopt in Britain. There is no prevention of services caused by allowing churches to act in conscience nor are churches calling for such in general.
The result of this action will be to force the churches to either act against their conscience or remove themselves from the process. They will choose the latter. This will reduce the amount of services in Britain and harm the children seeking to be adopted far more than allowing the exemption would the gay community.
Me, Somewhere in America,
"I ran a guest house, I would feel it my right not to allow homosexuals to use its beds. In fact I wouldn't insist on that - but I'd want to have the right to do so, because fundamentally their bed behaviour repels me."
I'm sorry, i can make an reasoned guess as to what you are infering to but the fact is anything a homosexual couple can do a hetrosexual couple 'could' do just as easily and yet i doubt you would ask them to sign contracts saying that they will not engage in specific acts while in your guest house or want the right to do so.
In general i don't believe it is fair to necassarily to force insitutions to allow those who do not conform to their doctrine membership/ services but for those with an obscure and unsubstantiated objection perhaps this law might prove to help break the taboo surrounding gay couples, or sadly, the more likely occurence is it will alienate them (those providing services), we shall have to wait and see.
Hal,, Bristol,
I have no sympathy for either viewpoints. While I respect social equality for homosexuals if, as a BBC Radio report featured, I ran a guest house, I would feel it my right not to allow homosexuals to use its beds. In fact I wouldn't insist on that - but I'd want to have the right to do so, because fundamentally their bed behaviour repels me.
And on the other hand, the church has no right to treat either homosexuals or women badly, because of dusty old dictates from a boring old book.
Solution? - be neither one nor the other, and thereby have an enlightened detached interest in seeing them both fight, wondering which will win.
Joe, Manchester,
That is a ridiculous argument Ryan. Christians are the first to complain when their rights are infringed upon, yet sadly a large number of them feel it necessary to dictate how others should live. As a Christian, I expect my right to worship as I choose not be infringed upon. As a gay man, I also expect the way I live my life to be protected from discrimination. As a person, I expect all people to be treated equally, irrespective of their idiosyncrasies. Human life is sacrosanct, and the diversity within humankind is equally as sacred. No adoption agency would ever consider denying a black couple their right to adopt, so what's the difference? And don't say, "you choose to be gay, you don't choose to be black" because that argument holds as much weight as the one you've failed to make. God, did he not, made all man equal?
Just because a powerful majority of largely fundamentalist Christians believe that something is not a fundamental human right does NOT mean it isn't.
Alex, Canterbury, UK
"The right not to be discriminated against on the ground of sexual orientation is a fundamental right"
Why? Because you proclaim it to be? Because a group of legislators voted that it should be? I guess I missed the argument. Did you even make one? Simply because a small but powerful minority believes something to be a fundamental right does not make it so. At least the right to freely practice one's religion has some basis in history.
Ryan, Saint Paul, Minnesota
Your last sentence is tendentious nonsense. The problem is exactly the converse: namely, the desire of secular atheist crusaders to use the criminal law to impose on others their narrow brand of ethical values. The doctrine of "human rights" invariably provides a useful smokescreen.....not to mention a fine living for its practitioners. They claim to be lawyers but are in fact unelected unaccountable politicians spending taxpayers' money on a prodigious scale.
Michael McGowan, London, UK
Doesn't this ruling make homosexuals the preferred applicants at an adoption agency?Any two men or any two women can walk into an adoption agency and walk out with any child they prefer.
ron, toronto,