Thursday, 14 February 2013

'Gay rights' and 'fundamental human rights'


Two judges in the European Court of Human Rights - Judges Vučinić (Montenegro) and De Gaetno (Malta) - have recently drawn a distinction between 'gay rights' and 'fundamental human rights'. In Eweida and Others v the United Kingdom - which I wrote about on the ECHR Blog - Vučinić and De Gaetno dissented from the majority opinion of the Court in respect of the complaint brought by one of the applicants, Ms. Ladele, about disciplinary proceedings taken against her by her employer when she refused to administer services to same-sex couples in her role as a registrar. The majority of the Fourth Section of the Court rejected Ms. Ladele's complaint, brought under Article 14 taken in conjunction with Article 9, that she had been discriminated against on the grounds of religion because her employer had failed to accommodate her religious objection to homosexuality.

In their partly dissenting opinion, Vučinić and De Gaetno argued that although Ms. Ladele had complained of religious discrimination under Article 9, the issue at stake was more one of freedom of conscience. They compared the applicant’s refusal to be involved in the administration of civil partnership ceremonies for same-sex couples with forms of conscientious objection that have ‘in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad’. Vučinić and De Gaetno argued that the failure of Ms. Ladele’s employers to protect her conscientious objection, which was a manifestation of her ‘deep religious conviction and beliefs’, violated her Article 9 rights.

In describing the situation that led to this violation of Ms. Ladele’s right to freedom of conscience, Vučinić and De Gaetno make an astonishing claim. They argue that the violation of the applicant’s Article 9 rights was the result of a ‘blinkered political correctness’ which favoured ‘gay rights’ over ‘fundamental human rights’.

On what basis do Vučinić and De Gaetno make this distinction between 'gay rights' and 'fundamental human rights'? The key issue in Ms. Ladele’s complaint was that a heterosexual woman (who was also religious) objected to homosexual partnerships and, as a result of this, felt unable to carry out her duty of providing lawfully proscribed services. Vučinić and De Gaetno distinguish Ms. Ladele’s conscientious objection to homosexuality to be a ‘human rights’ that is more ‘fundamental’ than the right of same-sex couples to have goods and services provided in a non-discriminatory way (services, such as civil partnership ceremonies, that same-sex couples may be accessing in order to exercise their own freedom of conscience). In other words, Vučinić and De Gaetno regard the majoritarian right of heterosexuals to object to homosexuality to have precedence over the ‘politically correct’ rights of gay men and lesbians. 
Whilst hostility to rights associated with sexual orientation has a long history in the Court, it is rare to see such an explicit ‘downgrading’ of the rights of sexual minorities in this way.

Why do Vučinić and De Gaetno take this line of reasoning? They argue that ‘Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users. Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others.’ In other words, they argue that because same-sex couples did not know Ms. Ladele objected to their partnerships and refused to carry out her full duties, it did them no harm. However, one wonders whether these judges would have reached the same conclusion if Ms. Ladele had claimed that, due to deep religious conviction, she was unable to be involved in the administration of marriage ceremonies for ‘mixed race’ couples (such religious objections, although they now appear bizarre or shameful, have a long history). Would Vučinić and De Gaetno have argued that such an objection should be protected as a ‘fundamental human right’ over and above ‘politically correct’ ideas about racial and ethnic rights? Would they have argued that Ms. Ladele’s employers and her colleagues should have accommodated racist views?

The dissenting opinions of individual judges are often a better window into the moral universe of the European Court of Human Rights than 'official' majority judgments. In the case of this dissenting opinion, it raises concerns about how the Court’s judges regard ‘gay rights’ in respect of the Convention.


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