The Queer, the Cross and the Closet: Religious Exceptions in Equality Law as State-Sponsored Homophobia
1.1. Religious Exce ptions to Equality Law
Lord Morrow paints a vivid image of religious service providers being persecuted by organised homosexuals with a litigious agenda to promote their ‘lifestyle’ (whatever that may be). From the historical view that homosexuals suffered from an excess of desire, ’homosexual activists’ now appear to be suffering from an excessive desire for equality (Brickell 2001).They make it possible for homosexual activists to sue people who disagree with a homosexual lifestyle because of their religious beliefs. Bed and breakfast owners and Christian old people’s homes will be sued for not giving a double bed to homosexual civil partners. Wedding photographers will be made to pay compensation for not taking bookings for civil partnership ceremonies. Christians in business could even be sued for sharing their faith with customers. Worst of all, they require religious organisations to choose between obedience to God and obedience to the state (HL Debate, January 2007, c 180).
The Horsemen of War and Pestilence have been repeatedly invoked in the debates on equality legislation. Discourses of national history, traditional values, and threats to ordinary people have been deployed by religious conservatives to challenge increasing LGBTQ+ equality. The next section highlights the hetero- and theonormativities in which such tropes are grounded, before going on to discuss how religious exceptions are a cloak for homophobia.‘Christianity has a rich cultural heritage in the UK. For more than 1600 years, it has shaped the way people in the British Isles think and act, both personally and publicly. It is by far the most significant single historical influence on our social and political culture...’ (ibid., 73).
2. Religious Exceptions as a Cloak for Homophobia
2.1. Religion and Homophobia
So now Irish gay people find ourselves in a ludicrous situation where not only are we not allowed to say publicly what we feel oppressed by, we are not even allowed to think it because our definition has been disallowed by our betters… And a jumped-up queer like me should know that the word “homophobia” is no longer available to gay people. Which is a spectacular and neat Orwellian trick because now it turns out that gay people are not the victims of homophobia—homophobes are (Bliss 2014).
2.2. Individual and Institutional Homophobia
In many countries across the region, and not only those with a documented growth in official bias-motivated speech, there has been an equally sharp increase in online hate-speech and physical attacks on LGBTI people, many of the latter premeditated and brutal… Brexit, for instance, and the populist narrative surrounding it, can be linked to an increase in anti-LGBTI hate crimes and incidents in England and Wales from 5807 in 2014–15, to 13,530 in 2018–19. Other developments such as the banning of events in Armenia, Hungary, Poland, Russia, and Turkey, and the prosecution of participants in Pride events in the latter, add to an atmosphere lacking in a sense of safety.
3. Legal Homophobia as State-Sponsored Harm
3.1. The Liberal Position
Interests can be blocked or defeated by events impersonal in nature or by plain bad luck. But they can only be ‘invaded’ by human beings… It is only when an interest is thwarted through an invasion by self or others, that its possessor is harmed in the legal sense… One person harms another… by invading, and thereby thwarting or setting back, his interest (ibid., pp. 215–6).
[R]ather than holding that the possibility of changing job would negate any interference with [Article 9], the better approach would be to weight that possibility in the overall balance when considering whether or not the restriction [on the right to manifest religious belief] was proportionate ( ECHR 37, ).
Even if exemptions are refused to service-providers, with some harm to their conscience, this does not shift the dignitary harm to those that oppose homosexuality by singling them out as second-class citizens. In fact, the law upholds their equal social standing through various fundamental rights (Adenitire 2020, p. 280).
3.2. A Foucaultian Analysis of Equality and Power
3.3. A Queer Analysis of Equality Law
3.4. Power and Privacy
4. Degrading Treatment: Article 3 ECHR
4.1. The Nature of Torture and Degrading Treatment
4.2. The European Court of Human Rights
… members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment because they fail to conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual orientation or gender identity may often contribute to the process of the dehumanisation of the victim, which is often a necessary condition for torture and ill-treatment to take place (United Nations Human Rights Council 2015, p. 34).
4.3. A Queerer Alternative: Resistances
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Conflicts of Interest
Legislation, Debates, and Committee ReportsEmployment Equality (Sexual Orientation) Regulations 2003Equality Act 2006, ch 3Equality Act (Sexual Orientation) Regulations 2007Equality Act 2010, ch 15House of Commons Committee 18 June 2009House of Lords Debate, 9 November 2005, c 630Human Rights Act 1998, ch 42Local Government (Religious etc. Observances) Act 2015, ch 27Marriage (Same-Sex Couples) Act 2013, ch 30
TreatiesConvention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR)
CasesBlack & Morgan v Wilkinson  EWCA Civ 820Bull & Bull v Hall & Preddy  EWCA Civ 83Bull v Hall  UKSC 73Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales Upper Tribunal, Appeal Number FTC/52/2011Ladele v Islington LBC  1 WLR 955Lee v Ashers Bakery and others  NICty 2Lee v Ashers Baking Company Ltd and others  UKSC 49London Borough of Islington v Ladele  UKEAT 0453_08_1912Pemberton v Inwood  EWCA Civ 564McFarlane v Relate Avon Ltd  EWCA Civ 880R (Amicus) v Secretary of State for Trade and Industry  EWHC 860 (Admin)R (National Secular Society & Anor.) v Bideford Town Council  EWHC 175 (Admin)
ECtHR CasesEweida and others v UK  ECHR 37Handyside v UK  ECHR 5Identoba and Others v Georgia  ECHR 537Ireland v UK, no. 5310/71, 18 January 1978, Series A no. 25: 163Kudla v Poland [GC], no. 30210/96, 26 October 2000, ECHR 2000-XIMoldovan and Others v Romania (No 2), Nos. 41138/98 and 64320/01, 12 July 2005 ECHR 2005-VIISelmouni v France [GC] no. 25803/94, 28 July 1999, ECHR 1999-VSmith and Grady v UK Nos. 33985/96 and 33986/96, 26 September 1999, ECHR 1999-VIX v Federal Republic of Germany, no. 9191/90 (unpublished)
- Addo, Michael K., and Nicholas Grief. 1998. Does Article 3 of the European Convention on Human Rights Enshrine Absolute Rights? European Journal of International Law 9: 510–24. [Google Scholar] [CrossRef][Green Version]
- Adenitire, John. 2020. A General Right to Conscientious Exemption: Beyond Religious Privilege. Cambridge: Cambridge University Press. [Google Scholar]
- BBC News. 2015. Nigel Farage Would Axe ‘Much of’ Race Discrimination Law. March 12. Available online: https://www.bbc.co.uk/news/uk-31846453 (accessed on 31 August 2021).
- Blasius, Mark. 1994. Gay and Lesbian Politics: Sexuality and the Emergence of a New Ethic. Philadelphia: Temple University Press. [Google Scholar]
- Bliss, Panti. 2014. Noble Call at the Abbey Theatre. Available online: https://www.youtube.com/watch?v=WXayhUzWnl0 (accessed on 31 August 2021).
- Boetzkes, Elisabeth. 2000. Symbolic Harm and Reproductive Practices. In Law and Medicine: Current Legal Issues. Oxford: Oxford University Press, vol. 3, pp. 327–40. [Google Scholar]
- Boswell, John. 1980. Christianity, Social Tolerance, and Homosexuality. Chicago: Chicago University Press. [Google Scholar]
- Brickell, Chris. 2001. Whose ‘Special Treatment’? Heterosexism and the Problems with Liberalism. Sexualities 4: 211–35. [Google Scholar] [CrossRef]
- BSA 36. 2020. British Social Attitudes 36. Relationships and Gender Identity: Public Attitudes within the Context of Legal Reform. Available online: https://www.bsa.natcen.ac.uk/media/39358/5_bsa36_relationships_and_gender_identity.pdf (accessed on 31 August 2021).
- Chakratborty, Apu, Sally McManus, Terry Brugha, Paul Bebbington, and Michael King. 2011. Mental health of the non-heterosexual population of England. British Journal of Psychiatry 198: 143–48. [Google Scholar] [CrossRef] [PubMed][Green Version]
- Christians in Parliament. 2012. Clearing the Ground Inquiry: Preliminary Report into the Freedom of Christians in the UK. Available online: www.eauk.org/clearingtheground (accessed on 31 August 2021).
- Clucas, Rob. 2017. Sexual Orientation Change Efforts: Conservative Christianity and Resistance to Sexual Justice. Social Sciences 6: 54. [Google Scholar] [CrossRef][Green Version]
- Cossman, B. 2007. Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging. California: Stanford University Press. [Google Scholar]
- Curtis, M.K. 2012. A Unique Religious Exemption From Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions for Those Who Discriminate Against Married or Marrying Gays in Context. Wake Forest Law Review, April 5. [Google Scholar]
- Department for Education. 2014. Promoting Fundamental British Values as Part of SMSC in Schools: Departmental Advice for Maintained Schools. London: Department for Education. [Google Scholar]
- Discrimination Law Review. 2007. A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain. London: HMSO. [Google Scholar]
- Donald, A. 2012. Religion or Belief, Equality and Human Rights in England and Wales. Equality and Human Rights Commission Research Report Series, Research Report 84. Available online: https://www.equalityhumanrights.com/en/publication-download/research-report-84-religion-or-belief-equality-and-human-rights-england-and (accessed on 31 August 2021).
- Equalities Review. 2007. Fairness and Freedom. London: HMSO. [Google Scholar]
- Esau, Alvin. 2000. Islands of Exclusivity: Religious organizations and employment discrimination. UBC Law Review 33: 719. [Google Scholar]
- Feinberg, Joel. 1984a. The Moral Limits of the Criminal Law Vol. I: Harm to Others. Oxford: Oxford University Press. [Google Scholar]
- Feinberg, Joel. 1984b. The Moral Limits of the Criminal Law Vol. II: Harm to Self. Oxford: Oxford University Press. [Google Scholar]
- Fittall, William. 2003. Letter to Joint Committee on Statutory Instruments from the Secretary General of the General Synod and the Archbishops. London: Council. [Google Scholar]
- Foucault, Michel. 1978. The History of Sexuality Vol. 1: The Will to Knowledge. London: Penguin. [Google Scholar]
- Foucault, Michel. 2007. Security, Territory, Population: Lectures at the Collège de France. Translated by G. Burchell. London: Palgrave Macmillan. [Google Scholar]
- Halley, Janet. 2006. Split Decisions: How and Why to Take a Break from Feminism. Princeton: Princeton University Press. [Google Scholar]
- Halperin, David M. 1995. Saint Foucault: Towards a Gay Hagiography. New York: Oxford University Press. [Google Scholar]
- Harvard Humanist. 2012. Theonormativity. Available online: https://www.patheos.com/blogs/nonprophetstatus/2012/12/18/theonormativity/ (accessed on 31 August 2021).
- Hobbes, Thomas. 1996. Leviathan. Edited by Tuck Richard. Cambridge: Cambridge University Press. First published 1651. [Google Scholar]
- ILGA. 2020. ILGA Europe, Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and Central Asia. Available online: https://www.ilga-europe.org/sites/default/files/Annual%20Review%202020.pdf (accessed on 31 August 2021).
- Johnson, Paul. 2013. Homosexuality and the European Court of Human Rights. Abingdon: Routledge. [Google Scholar]
- Johnson, Paul. 2015. The judgment in Identoba and Others v Georgia is a triumph for LGBT rights in Europe. ECHR Sexual Orientation Blog, May 13. [Google Scholar]
- Johnson, Paul, and Robert M. Vanderbeck. 2014. Law, Religion and Homosexuality. Abingdon: Routledge. [Google Scholar]
- Jung, Patricia Beattie, and Ralph F. Smith. 1993. Heterosexism: An Ethical Challenge. New York: SUNY Press. [Google Scholar]
- Kealy, W., and N. Horan. 2014. RTE Paid Out €85,000 in “Homophobe” Row. Dublin: Irish Independent. [Google Scholar]
- King, Michael, Joanna Semlyen, Sharon See Tai, Helen Killaspy, David Osborn, Dmitri Popelyuk, and Irwin Nazareth. 2008. A systematic review of mental disorder, suicide and deliberate self harm in lesbian, gay and bisexual people. BMC Psychiatry 8: 70. [Google Scholar] [CrossRef] [PubMed][Green Version]
- MacDougall, Bruce, and Donn Short. 2010. Religion-based Claims for Impinging on Queer Citizenship. Dalhousie Law Journal 33: 133–60. [Google Scholar]
- Mill, John Stuart. 1985. On Liberty. London: Penguin Classics. First published 1859. [Google Scholar]
- Moore, Michael. 1989. Sandelian Antiliberalism. Caifornia Law Review 77: 539. [Google Scholar] [CrossRef]
- Nehushtan, Yossi. 2007. The Limits of Tolerance: A Substantive-Liberal Perspective. Ratio Juris 20: 230–57. [Google Scholar] [CrossRef]
- Nehushtan, Yossi. 2015. Intolerant Religion in a Tolerant-Liberal Democracy. Oxford: Hart Publishing. [Google Scholar]
- Nehushtan, Yossi, and Stella Coyle. 2019. The Difference between Illegitimate Conscience and Misguided Conscience: Equality Laws, Abortion Laws and Religious Symbols. In Conscientious Exemptions in a Liberal State: Theoretical, Doctrinal and Comparative Perspectives. Edited by John Adenitire. Oxford: Hart Publishing. [Google Scholar]
- Patton, Paul. 2005. Foucault, Critique and Rights. Critical Horizons 6: 267. [Google Scholar] [CrossRef]
- Rawls, John. 1971. A Theory of Justice. Cambridge: Harvard University Press. [Google Scholar]
- Romero, Adam P. 2009. Methodological Descriptions: ‘Feminist’ and ‘Queer’ Legal Theories. In Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations. Edited by Martha Albertson Fineman, Jack E. Jackson and Adam P. Romero. Farnham: Ashgate. [Google Scholar]
- Sedgwick, Eve Kosofsky. 2008. The Epistemology of the Closet. Oakland: University of California Press. [Google Scholar]
- Sherwood, Harriet. 2016a. Senior Bishop Calls for Change in C of E Attitudes to Gay People. London: The Guardian. [Google Scholar]
- Sherwood, Harriet. 2016b. Bishop of Grantham First C of E Bishop to Declare He Is in Gay Relationship. London: The Guardian. [Google Scholar]
- Thomas, Kendall. 1992. Beyond the Privacy Principle. Columbia Law Review 92: 1431–516. [Google Scholar] [CrossRef]
- Thomas, Kendall. 1993. The Eclipse of Reason: A Rhetorical Reading of Bowers v Hardwick. Virginia Law Review 79: 1505–32. [Google Scholar] [CrossRef]
- Thomson, Judith Jarvis. 1990. The Realm of Rights. Cambridge: Harvard University Press. [Google Scholar]
- United Nations Human Rights Council. 2015. Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on their Sexual Orientation and Gender Identity: Report of the UN High Commissioner for Human Rights A/HRC/29/23. Geneva: United Nations Human Rights Council. [Google Scholar]
- UN Voluntary Fund for Victims of Torture. 2011. Interpretations of Torture in Light of the Practice and Jurisprudence of International Bodies 2. Geneva: UN Voluntary Fund for Victims of Tortur. [Google Scholar]
- Ward, Keith. 2011. Is Religion Irrational? Oxford: Lion Hudson. [Google Scholar]
- Weeks, Jeffrey. 1998. The Sexual Citizen. Theory, Culture, Society 15: 35–52. [Google Scholar] [CrossRef]
- Weinberg, George. 1972. Society and the Healthy Homosexual. New York: St Martin’s Press. [Google Scholar]
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Coyle, S. The Queer, the Cross and the Closet: Religious Exceptions in Equality Law as State-Sponsored Homophobia. Laws 2021, 10, 83. https://doi.org/10.3390/laws10040083
Coyle S. The Queer, the Cross and the Closet: Religious Exceptions in Equality Law as State-Sponsored Homophobia. Laws. 2021; 10(4):83. https://doi.org/10.3390/laws10040083Chicago/Turabian Style
Coyle, Stella. 2021. "The Queer, the Cross and the Closet: Religious Exceptions in Equality Law as State-Sponsored Homophobia" Laws 10, no. 4: 83. https://doi.org/10.3390/laws10040083