Equal rights versus bigotry? Freedom of conscience versus state morality?
Third Force News
The debate about the impact of new anti-discrimination rules on the role of Catholic and other faith-based adoption agencies encourages a polarisation of opinion. It seems to pit two of the founding principles of a liberal society against each other. Confronted with this dilemma it is perhaps not surprising that some of the protagonists have fled in panic from reasoned argument to take refuge in dogmatic assertion.
The principle of equal rights for all citizens under the law .leaves no room for exceptions. If sexual orientation is deemed irrelevant in determining citizenship then how can it be admitted as a criterion for determining access to the public services available to citizens? Yet liberal democracy stands on a historic compromise between the right of the majority to govern and the right of minorities to live according to their conscience. In John Stuart Mill’s classic formulation one citizen’s freedom to live as he chooses should be constrained only at the point where it begins to limit other citizens’ freedom.
The voluntary sector has a particular interest in defending Mill’s principle. The right of citizens to associate freely with another to pursue their shared vision of the public good is the foundation of voluntary action and of wider civil society. If the majority starts eroding that right then liberty itself is at risk.
When legislators create a new right they have an obligation to ensure that those who come into possession of the right have the means to use it. So when the Westminster and Scottish Parliaments remove the legal barriers to same sex couples adopting a child they have an obligation to ensure that same sex couples have access to the prescribed adoption procedures. Legislators can require that the state itself provides adoption services available to all. Or it can make public funds available to voluntary adoption groups willing to accept same sex couples. The non-discrimination rules at the heart of the current controversy raise a further question.
Having legislated the right of same sex couples to adopt should the legislators also cut off public funding to those voluntary groups who believe that same sex couples are not able to offer a child the best possible patenting, namely patenting by a couple of different sex? Or even further, close down entirely voluntary resourced adoption agencies which hold to this position?
The answers to these question should have nothing to do with one’s personal view of whether the non-conforming organisations are right or wrong to hold the beliefs that they do hold on adopting, or whether those beliefs are based on faith, science or pop psychology. It is a question not about the rightness of belief but about where the balance of freedom lies.
Is there a way of reconciling the two liberal principles behind this controversy?
Perhaps there is. Not all rights are of equal weight. The core rights of freedom of opinion, association, voting and equality under the law are core. Closely associated in our social democracies are the right to education, housing, public support in ill health, poverty and unemployment. These rights correspond to basic needs common to all. A charity dedicated to providing for the homeless or the sick which refused to help or secure help for particular people because of their sexual orientation or any other distinctive character would risk its right to exist. The right to adopt is a different order. It is in practice a right to be considered eligible to adopt subject to the needs and interests of the child. And the judgement of those needs and interests in necessarily a complex judgement inseparable from issues of belief.
If the scales of liberty are to be kept balanced firmly in favour of freedom of association and conscience, which is to say in favour of a vigorous civil society, then the obligation of non discrimination should be understood as an obligation specifically on the state and the public sector rather than on every component of civil society. If same sex couples have access to sympathetic adoption services are their rights or the principle of equality at all diminished by the continued existence of other adoption services which on grounds of conscience deny them access? No.