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Religious Freedom and Non-Discrimination

March 10th, 2014 by Matt

Currently I am working on a post on the issue of non-discrimination rights and the morality of discrimination. In the mean-time  I thought I would highlight the thoughtful commentary from James-Michael Smith in this video.

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  • Matt, this is flogging the proverbial deceased equine. Wouldn’t you be doing far better applying your earlier insights and excellent article on the Canaanite genocide to contemporary instances of genocide and ethnic cleansing that (ab)used that particular biblical precedent.

    Come on. Antidiscrimination laws protect conservative evangelical/reformed Christians as much as lesbians, gay men and bisexuals from accomodation, employment and service provision discrimination.

  • Hi Craig,

    I don’t know if you watched the above video, because James Michael Smith actually defends anti-discrimination laws which protect homosexuals from accommodation, employment and service provision discrimination. What he argues is that such laws should show more nuance than they currently do by distinguishing between service provision per se, and certain types of service provision which can be plausibly sad to involve a person endorsing or participating in a religious or political practises. His suggestion is that only the latter types should be permitted in law and the former types should be illegal.

    I find it difficult to grasp how if ,as defenders of anti-discrimination laws often claim, the issue is really about discrimination and not forcing others to endorse or participate in religious/political practices you support, a person could oppose such a position. After all freedom from all forms of discrimination that don’t involve this are covered by the law. All that’s being allowed is other peoples freedom to not endorse or participate in your choices.

    As to the Canaanite Genocide issue, I actually address some of those issues in my forthcoming book, which is scheduled to be published late this year. Unfortunately copyright issues prevent me publishing those reflections on my blog.

  • Let’s look at this from another angle. As an employer, whatever views I have about the particular conservative evangelical religious beliefs of a job applicant are irrelevant to my consideration of whether she or he is the best person suited to the job on grounds of merit and capability to perform her or his occupational responsibilities alone. I certainly wouldn’t object to her or him wearing a crucifix or even a precious feet badge, given that discrimination on the basis of political opinion is also illegal in this country.

    Is that therefore an imposition on me? Yes, but not an onerous one. Whatever my feelings about conservative evangelical Christianity as a belief system, I cannot and must not let it interfere with my (hypothetical) obligation to locate and appoint the best person for the given occupational role. Which might well be a conservative evangelical/reformed Christian. Or a Muslim woman, in which case she would be free to wear the hijab as a condition of her particular religious beliefs and take legitimate leave time on the hajj if that is a perceived obligation of her faith.
    Exactly the same premises would apply to successful Buddhist or Hindu applicants.

    One possibility to avoid potential conflicts of religious and philosophical views could be obvious (but voluntary) presentation of Christian et al religious symbols which would mean that any LGBT couple might be forewarned of their religious views and choose an alternative professional rather than a particular individual. Or a large pink triangle or labyris so that conservative Christian consumers might choose an alternative professional or service provider more in tune with their religious beliefs if they want to do likewise.

    I believe the Dutch call this ‘pillarisation,’ and it has worked well in insuring religious pluralism and neutrality in the Netherlands.

  • Craig, again I am not sure if you have watched the video, because James never said that a person should be allowed in law to reject an applicant for a job on the basis of race, religion, sexual orientation when those factors are irrelevant for the job. The video explicitly endorses anti discrimination laws which cover those scenarios.

    What it suggests is the laws should not be extended to cases where hiring or providing a service plausibly involves condoning or endorsing a particular political/ religious ceremony or platform the person in question dissents from.

    In normal circumstances hiring an evangelical person does not involve me endorsing evangelicalism or require me to attend or be part of a church service. So cases like the ones you mention don’t fall into the exception suggested.

    So again, I’d be interested in your views on what the video actually suggest’s

  • Hey Matt,

    You know my views on this. But just to play the devil’s advocate, what if a company argued that it should have the right to reject a wedding between two black people, because their religious/ideological convictions prohibit specifically black weddings? They have no problem with serving black people, as long as the black people are not getting married to each other.

  • Hugh, If they held anything like the typical white supremacist views against inter racial marriage would find their beliefs and actions morally reprehensible. [ though if they held the typical views they probably would not want to serve blacks period]. However they should be prosecuted for this however, and whether the law should compel them to be involved in such weddings is something I am less sure about and have gone back in forth on
    Its not that I value racist ideologies, I don’t but I see real danger in having the state decide that certain religious views are morally obnoxious and restricting freedom of religion to the non-obnoxious ones.
    For me it’s a bit like racist speech, I oppose it morally and would argue against racist ideas, but I am less sure that laws banning racist speech are a good idea, because when you do that you are allowing the state to ban particular viewpoints being expressed because of their political moral content and I think real care needs to be utilised when this is done. Given the fact that its not uncommon for people to argue that dissenting views on things like affirmative action, maori seats, Barak Obama’s presidency and so on are racist it could well be that tolerating racist speech is the price we pay for freedom of speech. The same is true with other freedoms like freedom of religion or association, it means we have to accept that people will believe and associate with things we find abhorrent.
    That said I think, the analogy between same sex marriage and interacial marriage doesn’t hold up. To esthablish it the defender of ssm has to provide a plausible account of what it is that makes bans on inter racial marriage unjust and show failure to recognizes SSM has the same properties. I don’t think anyone has done this. Inter racial marriage was opposed it seems to me for quite different reasons to those people appeal to to oppose SSM marriage is and one can reject the reasons people give for opposing interacial quite easily without being committed to SSM

  • Unfortunately, what you propose ( ie a person that is employed within a specific occupation that is not core to the doctrinal norms of given religious belief should be entitled to refuse service to someone on the basis of religious beliefs that LGB sexual orientation or transgender gender identity is ‘immoral’) is service provision discrimination.

    However, core religious practises are already provided with an exemption under antidiscrimination laws. If one’s religious beliefs are such that they do not allow women/lesbians and gay men access to their specific forms of ordained ministry, then so be it. In an environment of religious pluralism, and secularisation, most of us are quite happy outside the folds of organised Christian religious observance, or undertake secular weddings with a secular religious celebrant. One does feel sorry for LGBT Christians in this context, although they also have the choice of leaving such denominations for those that are more inclusive.

  • Unfortunately, what you propose ( ie a person that is employed within a specific occupation that is not core to the doctrinal norms of given religious belief should be entitled to refuse service to someone on the basis of religious beliefs that LGB sexual orientation or transgender gender identity is ‘immoral’) is service provision discrimination.

    Again, no one in the video proposes that someone can refuse service of a GLBT person purely on the grounds that they believe GLBT identity is immoral. The suggestion is that when serving someone occurs in a context where the service plausibly involves endorsing or partaking in a practice, or ceremony or platform of a political or religious nature a person’s should be allowed to refuse.

    So again Craig perhaps we can have some clarity do you believe people should be compelled to partake in ceremonies or endorse political religious platforms and positions if they are to be involved in the market place?

    women/lesbians and gay men access to their specific forms of ordained ministry, then so be it. In an environment of religious pluralism, and secularisation, most of us are quite happy outside the folds of organised Christian religious observance, or undertake secular weddings with a secular religious celebrant.

    Not sure this is true, as you well know only last year a society called the Gay and Lesbian Clergy Anti-Discrimination Society, attempted to sue the church of England precisely for failure to ordain someone who was in a sexual relationship with a member of the same sex.

  • Granted, but there are some denominations in which it would be absurd to do so. In the case of Anglicanism, lesbian and gay ordination is under debate with the Anglican Church of New Zealand and Church of England. Most former LGBT New Zealand Presbyterians have left that particular denomination in disgust some time ago- and the denomination appears to be dying anyway.

    Matt, I think another problem here is how credible you think the discourse of exclusion is. Take the Vatican’s current stance against transsexuality and gender reassignment surgery, which is just over a decade old. It didn’t exist until the late John Paul II invented it, with conservative Catholic endocrinologist Paul McHugh acting as ‘consultant’ in this instance. Am I supposed to regard this particular theological discourse as “legitimate?” On what basis? Certainly not “tradition.”

  • Craig, I must admit its difficult to keep up with your comments.
    In your first post you suggested that If one’s religious beliefs are such that they do not allow women/lesbians and gay men access to their specific forms of ordained ministry, then so be it. and that in an environment of religious pluralism, and secularisation, most of us are quite happy outside the folds of organised Christian religious observance, or undertake secular weddings with a secular religious celebrant .

    Now however you seem to be qualifying this and saying in fact you limit this tolerance to deonimnations where “ gay ordination is under debate” suggesting that in fact the issue is that law suits need to be carefully targeted to those demoninations with out an unofficial unequivocal stance.

    Yet Craig, last year Ian Bassett put out a legal opinion which stated that the exemptions being proposed by law only covered churches with an official statement opposing same sex marriage and opened the rest up to litigation. In response you suggested this was false
    http://www.gaynz.com/articles/publish/31/printer_13018.php and called for Rykens and Co and associates to write a rebuttal.

    Rykens and Co we have since found out were at the time they were drafting these responses, actually representing the Gay and Lesbian Clergy Anti-Discrimination Society, taking in court, suing the church of England the for violating the human rights act and arguing it could be used to prosecute churches like the church of England.

    In light of this it’s a little hard to keep up with what you really think. Should people who have a sincerely held religious belief opposing some practice be required in law to be involved in support or endorse that practice? Simple question.

  • To answer your question, Matt:
    (i) I oppose service provider discrimination in general.
    (ii) When it comes to the question of Anglican ordination, might I point out that it is evident that in churches where there is either ambiguity or debate about the prospects of LGBT ordination, then that is an ongoing process and predated marriage equality.
    (iii) Some churches unambiguously reject the prospect of LGBT ordination. Fair enough too, and they should not be compelled to do so. And are not, according to New Zealand antidiscrimination laws.
    (iv) Yes, and Ian Bassett also acts for Right to Life New Zealand. So David Ryken and Associates supports LGBT litigation, just as Bassett enables conservative Chrisitan litigation on matters of interest. So?

  • Craig, thanks for your answers:

    Re (a) Claiming you oppose service discrimination in general, does not answer my question which was not about service discrimination in general, but about wether one should be prohibited from discriminating in the provision of services, in the context where doing so plausibly constitutes endorsement or participation in a ceremony or practise contrary to ones religious/philosophical convictions.
    [Let me add that I think the claim that the law prohibits discrimination in general is inaccurate. The HRA actually allows discrimination in general, it prohibits discrimination only on specific grounds in specific contexts, in all other contexts and grounds it's actually legal. An wedding employer for example can turn down an applicant on the grounds he has an ugly tie despite advertising it to the public and despite tie colour being irrelevant to the job, he just can’t do so on certain prohibited grounds such as sexual orientation ]

    Re (ii) I am not sure why the fact there is debate in the church of England it follows a legal suit under the HRA is justified. Your response suggests that you think that a church is no exempt from the law if it does not have a unambigious stance or everyone in the denomination agrees with it. That however is my point, when Bassett argued this was the case you suggested it was nonsense and should be rebutted, now you seem to think its true and appropriate.

    Re(iii) I agree, however I don’t see why an individual person or individual church who is unambigiously opposed to some sexual practise on religious grounds should be compelled to engage in actions which plausibly involve endorsing or participating in practises which solemnise or celebrate sexual practises they consider immoral. It seems to be whatever reasons exist for exempting churches with an unambigious stance apply in these cases as well, so it makes no sense to prohibit one and not the other. In both cases the reason for the exemption is to safeguard freedom of religion.

    Re(iv) I agree that all people have a right to competent legal counsel and the professional duties of lawyers does not allow them to refuse a case simply because there clients have a particular political conviction.
    That is not the issue, what I object to is a firm like Ryken’s making public statements to the effect that churches cannot be sued under the law as a way of informing parliament of the facts and at the same time taking a case in court where they try and apply the law to sue churches. That strikes me as straightforwardly dishonest. If the law does not allow this, they should advise their clients it doesn’t and if they think it does allow it they should be upfront and admit. To say one thing when it advances a political cause and the opposite when it doesn’t is not to plead for justice or inform the public its to manipulate the courts and public.

  • Wow… so homosexuals are comparable to skinheads. And taking some photos of a loving couple or baking a cake is comparable to a nazi rally… amazing stuff. It is so ludicrous that I can’t even be offended.

  • No Mark, that’s just you misinterpreting what others said and painting it in a ludicrous light.

    James Michael –Smith was not in the video saying that homosexuals are comparable to skin heads, or did he say baking a cake and taking photos for a homosexual wedding is comparable to a nazi rally.

    What he did was use some examples of Nazism to show how baking a cake and taking photos can in certain contexts be seen as endorsement or participation. He also used various other examples to make the same point. If you disagree or think that’s ludicrous your welcome to respond with an argument showing that such things can’t be seen as participation.

  • I made a comment on this guys video a few days ago. I just went back to see how he responded to my argument and I see my comment is no longer there. I can remember the gist of what I wrote so I’ll make the same argument here…

    Christians appeal to balance when they encounter a contradiction in their beliefs about what is right and wrong.

    He expresses these two moral beliefs:-

    People have a right to religious freedom.
    People have a right to be protected from discrimination.
    The fact that religious freedom can include discrimination causes a contradiction for him. “Balance” allows him maintain the contradiction.

    Like all things gay the topic is mis-framed – “protection from discrimination” is really “forced acceptance”. Is it right to force some to accept others?

    If a vendor does not accept Christians what is the just punishment?
    If a vendor does not accept homosexuals what is the just punishment?

    Justice is eye for eye, tooth for tooth – and there is no actual loss caused to an offended customer – no punishment is justified.

    2 is false. People do not have a right to be protected from discrimination.

  • “No Mark, that’s just you misinterpreting what others said and painting it in a ludicrous light.”

    Have YOU watched that video Matt? Or did you just post it without bothering to watch it. His comparison is exactly what I said it was.
    No he did not actually say the words “a skinhead and a homosexual are comparable.”

    Strictly speaking you are right. It is about the more subtle levels of communication which you may not have picked up on. He is comparing two situations. One where a Jew is asked to prepare a swastika ham display for a bunch of skinheads who will preach a message of antisemitism. The other is a woman having to bake a cake for a loving couple who are both men. Now why do you think he chose this particular comparison? Sometime the communication is at a rhetorical level rather than a logical level, and this may have escaped you.

    It is not about an “argument” is is clear to see for anyone but the very autistic. It would be like me saying. I think all rats should be exterminated because they carry disease. From this we get the general principle that we should get rid of things which are harmful to society. Jews are harmful to society, so we should make an effort to remove them from society…. and then claiming that I never compared Jews to disease ridden rats… now strictly speaking this is true.. but you would have to be pretty naive to not see the insinuation being made in this case… and in the case of the video.

  • Mark, yes I did watch the video which is why I am convinced you have mischaracterised its content. You for example state

    “. He is comparing two situations. One where a Jew is asked to prepare a swastika ham display for a bunch of skinheads who will preach a message of antisemitism. The other is a woman having to bake a cake for a loving couple who are both men.”

    But that is false, those were not the two situations he compared at all. One only needs to watch the video to see this.
    What he did was say he wanted draw a distinction. Between refusing service in a context where doing so involves “communicating a message” or participating in or endorsing something a person fundamentally disagree with and a case where refusing service does not involve this. Noting this distinction by itself has nothing to do with homosexuality and a person who was in favour of Gay weddings could easily acknowledge its existence without insinuating anything about Gay marriage at all.
    Now he did compare two situations to illustrate this distinction however the comparison was not between a skin head and a loving homosexual couple. The comparison he makes is actually between (a) a case where a Jew is asked to serve a skin head a meal in his a restaurant and (b) a case where a jew being asked to cater a KK wedding bake him a cake made of ham in the pattern of a swastika. Neither (a) or (b) involve homosexual couples, in fact the comparison is between a skin head in two different service contexts.
    Moreover, it’s clear the point of the comparison is not to make an analogy with same sex couples at all. It’s to illustrate a distinction, the distinction between service that plausibly involved endorsing or participating in something the owner morally objects to and service that doesn’t.
    So contrary to what you say, the video does not compare gay weddings to Klan weddings. To say this is simply to take to situations which are mentioned in the video and splice them together and claim the author was making an analogy between them. That’s simply to misrepresent him.
    Also contrary to what you say, this is about his argument, rational discussion on the question of justice and rights and the homosexual marriage. Involves listening charitably to other peoples reasons and responding to them, it doesn’t involve attributing nasty agendas to them and then dismissing the reasons they actually offered on the basis of this.

    Your welcome to respond to the actual argument made. That in certain contexts serving someone constitutes endorsing or participating in a practise a person morally objects to, and that for this reason laws against service discrimination should make an exemption for service which occurs in that context. Unless you believe the law should make participation in homosexual marriages compulsory or make it illegal to not endorse such practises its hard to see what there is to object in this? Its interesting that neither you or Craig have yet responded to the actual point.

  • You just confirmed everything I said Matthew.
    Thank you.

  • Mark, you seem to not be getting the point that using an example to illustrate a point or distinction in a debate about samse sex marriage is not the same as claiming homosexuals are morally on par with the people in the example.

    You seem to think this is naïve and autistic and that people who do this are clearly making an insinuation.

    Lets test this theory, take the following citation from a very common article in the literature.

    “Consider first the pro homosexual side.”they are born that way therefore its natural and good”. This inference assumes that inate desires are good ( I.e they dhould be acted on). But this assumption is clearly false Research suggests that some people are born with a predisposition toward violence, but such people have no more right to strangle their neighbors than does anyone else. So even though some people may be born with homosexual tendencies, it doesn’t follow that they ought to act on them.”

    The author here uses an example of violence to refute an argument in favor of the permissibly of homosexual conduct.

    Your logic would maintain the author here is “comparing” homosexual conduct to violence and insinuating that homosexuals are dangerous people. I don’t think this is the case, I think he is just using the example of violence to show a particular premise of the argument is false. Do you agree with me or do you think the author is insinuating that homosexuals are violent and dangerous and that only an autistic person would think otherwise?

  • Mark, seeing you have not answered my question. I’ll let my readers know the source of the quote, its John Corvino’s “Why shouldn’t Tommy and Jim have sex: A defence of homosexuality. Corvino is a homosexual and a leading defender in the literature of the moral permissibly of homosexual acts. The article is perhaps one of the most widely published in ethics texts books defending same sex relationships. So to be clear, do you think Corvino believes and is suggesting all homosexuals are violent and insinuating this?