There is something horribly familiar about recent events in the land of the free. The resignation/ dismissal of Brendan Eich of Mozilla, the Elane Photography case, and the Julea Ward case have all given me a chilling sense of déjà vu. These decisions — from corporations, universities, and courts — have set an ominous precedent for the coming price of citizenship for those who adhere to Judeo-Christian morality.
The reason why the current threat is so serious is that the calls for the denial of religious freedoms (as identified by the late Professor Dworkin) appear so reasonable. This time we are not hearing the voice of tyrants, but the siren call of equality, diversity, and freedom from sexual prejudice and discrimination. What reasonable person would not want this? Anyone who opposes this, so the argument goes, must be a bigot and should be denied their human dignity (because such a person denies dignity to others).
In the midst of these developments, the intrinsic value of free speech has been lost, and government and quasi-government institutions seek to tell us what we can say, and even what we can think. In the process, the rule of law is subverted to this cause. I ask myself the question: where have we seen this before?
In the near future, Americans will see the rapid growth of bodies like the New Mexico Human Rights Commission, with bureaucrats and public officials determining complex moral issues. Uncle Sam will use the full panoply of state power to chilling effect, such as simply deciding which cases to take on and which to ignore.
Meanwhile, in England, the Equality and Human Rights Commission has never intervened in any controversial case to support a Christian adherent. They have, however, supported a whole range of cases in support of gay rights, transgendered individuals, and against Catholic adoption agencies. In one case where I acted as counsel for Christian foster parents, the state-sponsored commission spoke of the need to protect vulnerable children from being “infected” with Judeo-Christian ethics of sexual morality. You don’t have to think too hard to work out what would happen to anyone who used the word ‘infected’ to describe certain other groups, but the British legal system let it pass.
America is likely to see the introduction of something like a public sector equality duty; this places a responsibility on public bodies in England to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations. It’s a noble principle, but, of course, the definition of “discrimination” is wholly political.
The Law Society of England and Wales refused to host a Christian conference on marriage because that was discriminatory, but recently gave advice to solicitors on how to discriminate against women and non-Muslims in the drafting of sharia-compliant wills. I wonder if a Jewish solicitor could draft such a sharia-compliant will?
My American friends tell me that they have the First Amendment; and it is still strong. But we should not underestimate what judges can do. In my cases on the wearing of crosses at British Airways and at Exeter Hospital, a total of 13 British judges denied that the Christian cross was a manifestation of religion. In another case, a tribunal recently held that Sunday was not a core component of the Christian faith. These decisions were reversed either in Europe or in national courts, but an appeal was required on these basic issues.
The price of citizenship in the United Kingdom is indeed high for the religious adherent. In a case I took to the European Court (McFarlane v United Kingdom), Mr. McFarlane was dismissed for the mere expression of opposition to same-sex marriage, although he could have been easily accommodated in his work as a relationship counselor by only counseling different-sex couples. In another case, a housing trust worker was disciplined and demoted for expressing the view of belief in marriage.
The new liberal dogma says that a Jew or Christian is a bigot if they do not believe in the homosexual agenda. Consequently, a marriage counselor cannot discharge his functions correctly, a housing worker will discriminate against homosexual applicants, and a Christian law school will teach its lawyers to be bigots. Christians are told that their belief that marriage is between a man and woman is, in fact, not their true belief. Rather, they really believe that homosexuals are wicked sinners; and why, it is asked, should such beliefs be protected by the First Amendment?
Surprisingly, I am not pessimistic because I believe that this latest attempt to dismantle the rule of law for political purposes will ultimately fail. It will fail because the brutality that lawlessness engenders will create such a climate of insecurity that even the elites will feel endangered. As they seek to protect themselves, the privileged position of some groups in society (I would submit that homosexual and Muslim groups fit into this category) will disappear.
But the resulting damage may be lasting. The current brutality against Christians has the potential to develop into wider lawlessness and it is, simply, frightening. It is elite- and court-led; and in both the U.S. and UK, Congress and Parliament must re-assert their democratic authority.
It is important that the U.S. and UK stay close, and that the values that have brought prosperity, and a healthy application of the rule of law, be cherished and preserved. The U.S. is the epicenter of freedom in the world, including religious freedom, and she must continue as the standard bearer. But the UK is a “pivotal influence state,” and what happens here is often followed in other countries. The challenge of liberal dogmatism, like the challenge of national and international socialism before it, requires a united and robust response.