Joseph Hepworth reporting
Moderator: Elizabeth A. Clark
Speakers: Renáta Uitz, Mark Hill, Ian Linden, Anthony Gill
Renáta Uitz, Professor and Chair, Comparative Law Program, Central European University
Professor Uitz described the clash between freedom of religion and other human rights. She suggested that it might be useful to take a second look at the picture. We arrived at the same-sex marriage debate after a decades-long transformation of family law. For example, the status of children born out of wedlock was a development in family law that affected the status of children adopted by gay couples.
By juxtaposing gays and believers, the legal profession has had a big role in generating these clashes. The clash between freedom of religion and the right to private family life is illustrated by the conflict over child custody when a marriage is dissolved. One of the parents joins or leaves a religious community, and a custody dispute arises. When these cases get to court, at least in Europe, the domestic court discusses the lifestyle choices of the parent that the parent imposes on the child. The measuring stick is normalcy. If it is not “normal,” the court may interpret the choice as harmful to the child.
Instead of focusing on the rights, Professor Uitz suggested that we should focus on the underlying relationships that create the rights. She stressed the importance of becoming aware of our majoritarian biases. Those biases undercut the claims of a religious minority. Courts might engage in a de facto establishment of religion through bias.
Professor Uitz suggested that same-sex marriage is less about redefining religious marriage, and more about defining all civil marriages to be equal.
Mark Hill QC, Honorary Professor, Centre for Law and Religion, Cardiff, University, United Kingdom; Extraordinary Professor, University of Pretoria, South Africa
Professor Hill suggested that the greatest tension between rights relates to human sexuality and religious rights. Early decisions affecting sexuality focused on other rights, such as rights of association, rather than religious rights. Religion has two aspects, belief and outward manifestation. The first is not qualified; the second is subject to limitations. The European Court has redefined the definition of the family.
The tension is exacerbated by the distinction between liberty and equality. Equality may work to the disadvantage of those who want to exercise religious rights. But in a curious way, the equality may work to the advantage of minority religious groups. With equality, there may be a race to the bottom, driving out religion. On the other hand, raising other religions to the status of the majority religion would have the opposite effect.
Professor Hill suggested that respect may not be the answer, and the court of human rights may not have the answer. Respect may be the answer in the ivory tower of academia, but it does not work in the courts. Litigants do not respect each other. The gravity of religious rights protection may be moving to the European Court of Luxemburg. No need to go to home court first. Luxemburg is very fast. Cases brought in Luxemburg are private. Resolution is not best resolved by the courts and lawyers. Citizens have a duty not to engage in undignified litigation. The majority of these issues are sorted out by common sense in other forums. Professor Hill proposed more mediation. He observed that judges do not have the answers. We have over exaggerated views of the capacity of judges to resolve these issues, particularly issues of gay marriage.
Ian Linden, Senior Advisor, Tony Blair Foundation; Associate Professor in the Study of Religion at the School of Oriental and African Studies (SOAS), University of London
Professor Linden suggested that there is a tension between universality and particularity, with an international dimension. We should think of human rights in terms of citizenship and the rights of citizens and international order. Being more than citizens creates different tensions in different political contexts. Different identities differ in their weight and value. Religious identity covers a large part of human life. Theology is about everything; sexuality identity is only about one thing.
Focusing on gay marriage, Professor Linden suggested that civil partnership is differentiated from marriage. Calling it gay marriage required a redefinition of the term marriage.
Professor Linden concluded by arguing that litigation is not the way to resolve clashing identities. It’s a failure on the part of religious leaders. They did not recognize civil partnerships. Programmatic secularism pushed religion to the corner. What needs to be sought now is better dispute resolution, more mediation.
Professor Linden also observed that if religious communities do not show love toward gay members, what they say will be seen as homophobic. It’s a natural human reality.
Anthony Gill, Professor, Department of Political Science, University of Washington
Professor Gill began his remarks with the observation that the United States is the “birthplace of modern religious freedom, but we are losing it.”
Professor Gill made two points. First, if you want religious liberty, you have to go in all the way for liberty, period. He contrasted the Catholic church’s opposition to abortion rights in the Affordable Care Act with the support of the loss of other liberty in the same Act. The bigger the government, the less liberty. The bigger the state, the more the need for tax revenue. Religious groups do not generate a lot of tax revenue, so when a government is looking for revenue, it will discriminate against religions. A larger state will create a lot of bureaucratic interest that crowds out what religions do. Religions are not needed to do a lot of things if the state does them. If we want to fight for religious liberty, we need to fight for other liberties as well, including a smaller state.
Second, Professor Gill discussed the benefits of religious liberty. If you move from less religious liberty to more, there will be winners and losers. The losers always fight back. It’s important to appeal to the interests of the government, which writes the rules. Religious liberty creates a lot of economic benefits. It performs a lot of social services that do not need to be performed by the state.