Homosexuality and Human Rights
On Sunday 15th June 2003 the senior Law Lord, Lord Bingham, gave the annual Warburton Lecture at the Temple Church in London under the title Endowed by their Creator? He considered the question of whether human rights are endowed by God. Forty years ago another Law Lord, Lord Devlin, was at the forefront of a debate concerning a very different issue - the relationship between religion, morality and the law. That debate arose as a result of the 1957 Report of the Committee on Homosexual Offences and Prostitution (the ‘Wolfenden Report’ as it is generally known), which had recommended that homosexual practices in private between consenting adults should no longer be a crime. Dissenting, Lord Devlin expressed the view that ‘the law must base itself on Christian morals and to the limit of its ability enforce them…for the compelling reason that without the help of Christian teaching the law will fail.’
How times have changed. It took ten years for the recommendation of the Wolfenden Report finally to find its way onto the Statute Book. But the enacting of the Sexual Offences Act 1967 marked not the end of the law’s concern with issues to do with homosexuality but the beginning of a whole new era of judicial and legislative concern about such issues.
In the 1970s and 1980s the courts began to be faced with decisions about whether it was right for children to be brought up by a parent who was living with a same-sex partner. Judges were clearly anxious about these decisions. Some of the language in which judicial concerns were expressed was a reflection of the view of society at large. In one such case in 1982 for example, a Court of Appeal judge referred to ‘sexual deviance and its consequences by those who practise it’. But as increasing numbers of families came to be headed by same-sex partners so research into those families has helped significantly to reduce judicial concern. For the evidence arising from research suggests that fears that the psychosexual development of children brought up in such households will be distorted, or that they will suffer stigmatisation, appear largely unfounded.
By the 1990s same-sex family life no longer caused judicial eyebrows to be raised. In 1997 the placement of a child for adoption by a woman in a settled lesbian relationship was not considered by the court to raise any policy issues. The Adoption and Children Act 2002, due to come into force in 2005, explicitly permits adoption by same-sex couples. According to the Government’s ‘Women & Equality Unit’ website, ‘The Adoption and Children Act 2002 will ensure that same-sex couples will be able to apply to adopt a child jointly. This will help achieve the Government’s objective of increasing the number of vulnerable children who have the opportunity, through adoption, to grow up as part of a loving, stable and permanent family'.
Even at the time it was enacted, the language used in section 28 of the Local Government Act 1988 (the proposed repeal of which was later to excite some passionate opposition) was not reflective of society’s growing acceptance of same-sex families. Its injunction that ‘A local authority shall not…(b) promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship' [my emphasis] was very much against the tide. Not only were the courts increasingly accepting the authenticity of same-sex families but the growing importance of the concept of human rights was beginning to lead both the courts and the legislature to be concerned with wider issues to do with family life and daily living.
In 1995 the Court of Appeal acknowledged that ‘…over the years since the passing of the Sexual Offences Act 1967, there can be no doubt that public opinion has moved a very long way… We have seen a greater and greater public awareness and acceptance of homosexuality...’. It acknowledged, too, that the consequence of this ‘has been a growing recognition of the specific human rights of homosexuals’. In a case decided in April 2004 it was stated that ‘sexual orientation is now clearly recognised as an impermissible ground of discrimination.’ There are many within the Church who would not strongly demur. However, the court also went on to observe that ‘modern human rights jurisprudence acknowledges the importance of recognising and valuing same-sex relationships equally with opposite sex relationships’. [It is also worth noting, in passing, that even more recently, in June 2004, the Appeal Committee of the House of Lords acknowledged that in the context of modern human rights law the distinction between sexual orientation and sexual practice is not recognised as a relevant distinction].
Where the courts and the European Convention for the Protection of Human Rights and Fundamental Freedoms have led, the Government has been bound – in some instances bound by its international obligations – to follow. As a result, we now have, for example, the Employment Equality (Sexual Orientation) Regulations 2003, the Gender Recognition Act 2004 and the Civil Partnership Bill (presently before Parliament).
So it is that the law now affords rights, status and legitimacy to same-sex couples. It acknowledges the authenticity of same-sex family life. It does not shrink from the prospect of children being brought up by same-sex couples. In some circumstances it is even willing to regard heterosexual couples and homosexual couples as having an equivalent relationship.
Judges and legislators would no doubt say that all of this is not so much enlightened as compassionate and just. But, it may be said, the law cannot change hearts, minds and consciences. Christians cannot be compelled to agree with the temporal, legal authorities. For Christians have a very clear starting point in determining what is compassionate and just in any given situation. Methodism’s principal tenet remains: the revelation of God in Holy Scripture is our supreme rule of faith and practice. It therefore cannot be right for Christians to change their position primarily in order to remain in vogue with current secular opinions about homosexuality. Christians must never allow themselves to sacrifice integrity in order to be seen to be fashionable.
Yet the undoubted movement towards recognising and upholding the rights of homosexuals ought, at the very least, to make us question whether society’s increasing acceptance of these rights is merely ‘in vogue’ and ‘fashionable’. For in an age which places such high value upon human rights, there are significant issues of credibility at stake for the Church. The recently published Government White Paper Fairness for All: A Commission for Equality and Human Rights makes the point that ‘Human rights are based on an idea of fairness for all, establishing basic principles of dignity, respect and protection for everyone, regardless of our differences. Human rights are not just for those who experience discrimination. They are inclusive and affect everyone.’ As a statement of principle, this is hard to disagree with. Yet if we accept it, there are clear risks for the credibility of the Church if it is seen to champion the rights of some groups within society (e.g. the Methodist Church’s strong commitment to issues such as racial justice and gender justice) yet to be lukewarm or even hostile to the rights – or what society increasingly accepts to be the rights – of others.
The Derby Resolutions on Human Sexuality illustrate a related problem. The sixth resolution ends with a call to the Methodist people ‘to begin a pilgrimage of faith to combat repression and discrimination, to work for justice and human rights and to give dignity and worth to people whatever their sexuality’. In this area of human sexuality there is some common language used by the sixth resolution and by the law – ‘discrimination’, ‘justice’, ‘dignity’ and ‘human rights’. So far as the law is concerned, those words are now understood to have an increasingly clear and well-defined meaning. But what does the Church mean when it uses those words? And are there not obvious dangers for the credibility of the Church if, in its public statements, it uses the same language as that used in human rights law yet means and intends something very different by it?
So far as issues to do with human sexuality are concerned it is clear that over the last forty years the focus of law making has shifted from the enforcement of morals to the upholding of human rights. So, I return to Lord Bingham’s question: are human rights ‘endowed by their Creator?’ Lord Bingham concluded that they are not: ‘While acknowledging that religious belief has inspired very important humanitarian reforms…I think it nonetheless true that our preoccupation with human rights is not a direct product of religious belief.’ However, he also says that ‘There could be no more blatant betrayal of [God’s] love and purpose than for us…to be indifferent towards each other. To love our neighbour as ourselves is more than a duty, it is a manifestation of our loving relationship with Him. It is…a short step from loving one’s neighbour to recognising that he or she has needs and interests, and a shorter step still to recognising that in our dealings with each other there are some basic and fundamental standards which human beings should observe and from which they should not depart.’ Discerning what these ‘needs and interests’ are is an ongoing process not just for lawmakers but for Christians too.
The law is constantly developing to meet the changing needs and interests of the increasingly diverse society in which we now live. The well-being of society depends upon this ability of the law to change responsively and responsibly. Listening and understanding are essential to the effectiveness of this process of change. Theology, too, is not static. It cannot and must not stand still. Listening to, engaging with and deepening our understanding of God and of his creation are an essential part of an ongoing process. And in this process the most basic prerequisite, surely, is an open mind.
The Rev Clifford W Bellamy is a Methodist minister serving as a District Judge based at the Combined Courts Centre, Leeds.
Headline, Autumn 2004 pp 21-22.