The European Court of Human Rights ruling this week on four cases of conflict over religious rights, and the continuing controversy in Britain, France and elsewhere on proposals to legalize gay marriage, shows the ongoing battle over how we should define religious freedom. I wrote a long post on this question last year, trying to establish some fundamental ground rules from first principles. Here I want to address one issue that has become prominent in recent weeks: the claim by a growing number of believers, especially Catholics, that the legalization of gay marriage amounts in itself to an attack on religious freedom, even to the persecution of Christians. More than 1000 Catholics priests, bishops and abbots – almost a quarter of Catholic clerics in England and Wales – signed a letter to the Daily Telegraph suggesting that while ‘After centuries of persecution Catholics have, in recent times, been able to be members of the professions and participate fully in the life of this country’, legalizing same sex unions would return Britain to the days of persecution, ‘severely restricting the ability of Catholics to teach the truth about marriage in their schools, charitable institutions or places of worship’. The journalist Cristina Odone, former editor of the Catholic Herald, agreed that ‘David Cameron’s persecution of Catholics makes him Henry VIII, mark II’. ‘Once gay marriage is a law’, she claimed, ‘Catholics will be barred from many professions — just as they were from the Reformation until the 19th Century’. There are, she adds, ‘many Christians willing to play Thomas More to David Cameron’s Henry VIII’.
Such claims, it seems to me, not only fundamentally misunderstand religious freedom, but, in their wild hysteria, serve also to undermine those very freedoms.
The issue here is not whether or not it is right to legalize same-sex marriage. I happen to think it is. Many believers, and some secularists, disagree. The issue, rather, is whether legalizing gay marriage would in itself amount to an attack on religious freedom, and would inevitably lead to the persecution of believers, and of Catholics in particular. Unless it is wrong for a society to enact laws that are contrary to the beliefs or practices of certain religions, then it cannot be wrong in principle for society to legalize gay marriage, nor can such legislation be in principle contrary to the demands of religious freedom. Indeed, it is only because there exists a distinction between what a religion requires or forbids and what a society permits or proscribes that the issue of religious freedom is important. If there were no such distinction, then there would be no need to defend freedom of religion.
There are many laws that liberal societies enact that are contrary to the beliefs and practices of many religions. The legalization of abortion, for instance, of homosexuality, and of divorce (and the acceptance that divorcees can remarry) – all legally permit practices condemned by the Catholic Church (and by many other faiths). Are these also expressions of the ‘persecution’ of believers? If not, why should the legalization of gay marriage be so different?
The claim that legalizing gay marriage undermines freedom of religion has it back to front. Legalizing gay marriage in reality extends freedom of religion. While most faiths oppose gay marriage, some support it and would like to consecrate same-sex unions. They are, however, forbidden from doing so by the law. Adherents of such faiths are, in other words, legally prohibited from following their conscience. In permitting such congregations formally to bless same-sex unions, any law legalizing gay marriage would extend freedom of religion. The question that critics like Cristina Odone have to answer is not simply: ‘Why should your beliefs be so privileged that the fact that you hold a particular view of marriage be sufficient to prevent others from acting upon their different beliefs and legalizing same-sex marriage?’. It is also: ‘Why should your religious beliefs be so privileged as to take precedence over the religious beliefs of others who happen to hold different views to your own?’ And: ‘In insisting that certain religious groups cannot act upon their conscience, is it not you that is attacking freedom of religion?’
What would be wrong, and contrary to religious freedom, would be to force churches that do not accept the validity of same sex-unions to perform such marriages. No one is, however, suggesting that they should. Nevertheless opponents of gay marriage constantly raise this spectre. ‘Once gay marriage is legal’, Odone claims, ‘secularists can rely on a host of equality laws to prosecute a conscientious objector who fails to promote it’. There are, as we have seen, many laws that permit practices contrary to religious belief. Would an earlier version of Cristina Odone have insisted that the 1967 Abortion Act, that legalized a practice that Catholics consider far more wicked than gay marriage, would also lead to the prosecution, and persecution, of Catholics? Or the legalization of homosexuality that same year? Or the 1857 Matrimonial Causes Act, which allowed ordinary people for the first time to divorce, and without an Act of Parliament? If so, why should we take more seriously the claims about the consequences of legalizing gay marriage than we would have those earlier claims about the consequences of legalizing abortion and homosexuality and divorce? And if not, why is legalizing gay marriage so different in terms of consequences to Catholic belief that the legalizing of abortion or homosexuality or divorce?
In any case, what is the alternative? Odone and the Catholic priests are in effect arguing that the possibility of religious freedoms being trampled upon in the future should be reason definitely to trample upon the freedom of gays to marry today. How can this possibly be a morally or politically acceptable argument? If legislation for gay marriage does lead to unacceptable infringements upon religious freedom, then we – secular and religious – should contest any such infringements. But the fact that injustice may be done to believers in the future is no reason to prevent justice being done to gays and lesbians today. (I recognize that many believers do not see legalizing same-sex marriage as enabling justice to be done to gays and lesbians; that, however, is a different debate.) Certain injustice to X today is hardly a good remedy for possible injustice to Y tomorrow.
What of the claim, made by the Catholic clerics in their letter to the Daily Telegraph, that ‘Legislation for same sex marriage, should it be enacted, will have many legal consequences, severely restricting the ability of Catholics to teach the truth about marriage in their schools, charitable institutions or places of worship’?
Given that we live in an age in which the claim that certain speech is ‘offensive’ is used all too often to impose censorship, and in which there is increasing intolerance of those whose speech does not conform to liberal norms, there may well be grounds for such fears. If it turns out that Catholics, or anyone else, are prevented from teaching what they consider to be the ‘truth’, either in public or within their own institutions or places of worship, such restraints should be robustly challenged, not just by religious believers but by all those who believe in free expression and freedom of conscience. But again, the remedy for possible injustice to one group in the future cannot be the insistence on injustice to another group today.
In any case, the issue of gay marriage is not fundamentally different from many other cases in which religious ‘truth’ diverges from that which the law permits or proscribes. The fact that abortion, contraception, homosexuality and divorce are all legal in Britain has not prevented Catholic priests or teachers from asserting their ’truth’ on these issues, or barred them from entering any profession.
There has certainly been a long history of anti-Catholic bigotry in this country, often promoted by liberals. But the idea that the legalization of gay marriage will have consequences for Catholics that could bear comparison with the penal laws of old, or that the actions of David Cameron make him ‘Henry VIII Mk II’, is at best historically illiterate, at worst downright bonkers. Henry VIII persecuted Catholics by hanging, drawing, burning and quartering them. The ‘penal laws’ refer primarily to a battery of laws that were created specifically to harass, humiliate and oppress Catholics after the Glorious Revolution of 1688, when the Catholic James II was overthrown by a union of English Parliamentarians and the Dutch Protestant William of Orange. Catholics were excluded from most public offices, could not stand for parliament and were denied the vote; they were forced out of many professions from teaching to the law; they were barred from English universities, but barred also from studying abroad; they were forbidden from holding firearms, from serving in the armed forces and even from owning a horse valued at over £5; they could not inherit Protestant land and could not buy land with a lease of more than 31 years; Protestants were banned from converting to Catholicism, and Catholics banned from marrying Protestants. And so on. To suggest that this history of persecution provides a useful analogy for what might happen if same sex-marriage is legalized is, frankly, to take leave of reason.
The hysteria about penal laws, ‘persecution’ and ‘martyrs’ tells us little either about the Catholic past or about the Catholic future. It tells us, rather, much about the politics of the present, and in particularly about the way that so many interest groups now see playing the victim card as the way to trump political debate. Once the currency of political debate becomes not rational discussion but emotional blackmail, then there inevitably develops an arms race to generate increasingly more grotesque fears.
The letter of the 1000 Catholic clerics concludes:
The natural complementarity between a man and a woman leads to marriage, seen as a lifelong partnership. This loving union – because of their physical complementarity – is open to bringing forth and nurturing children. This is what marriage is. That is why marriage is only possible between a man and a woman. Marriage, and the home, children and family life it generates, is the foundation and basic building block of our society.
They have every right to believe this, to publicly express that belief and to act upon it by refusing to countenance same-sex unions within their church. What they do not have the right to do is to insist that if anyone else thinks differently, and wishes to act upon their belief, they are in so doing persecuting Catholics and attacking religious freedom, and that therefore such beliefs must not be acted upon. Religious freedom is important; too important to leave it be traduced in such cavalier fashion by particular interest groups.
The photos are of English Catholic martyrs executed by Henry VIII for refusing to renounce their faith and depicted in the great West Window of St Etheldreda’s Church in London, the story of which I recently wrote about.