Thursday, 4 March 2010

So one bad law deserves another?

The House of Lords has just voted (in my opinion, rightly) to allow civil partnerships to be registered in places of worship. The result, however, is that, according to the Telegraph, “Traditionalist bishops and peers fear that vicars could be taken to court and accused of discrimination if they turn down requests to hold civil partnerships on religious premises.”

To be honest, I wouldn’t be surprised. Some people seem to have an urge to sue anyone for just about anything. And I wouldn’t even be surprised if the courts found in their favour - which would, in my opinion, be utterly wrong.

Lord Waddington is quoted as saying that a clergyman “prepared to register marriages but not to register civil partnerships would be accused of discrimination on grounds of sexual orientation in the provision of services and pressure would be brought to bear on him to pocket his principles and do what he believed to be wrong”. He may be right.

The problem, however, is not with Lord Alli’s amendment. The problem is that to ban discrimination in the provision of goods and services is wrong. If a trader at Portobello Market refuses to sell me a jar of marmalade just because I’m a bear, that’s his right. It’s a free country. At least it used to be. I may be young, but I’m not childish enough to want to want to take away his right.

If it was not for the authoritarian laws which forbid people from discriminating in the provision of goods and services, we wouldn’t have Lord Waddington and the traditionalist bishops arguing for retaining the authoritarian law that forbids places of worship from being used to register civil partnerships. It seems that one authoritarian law requires another.

Please could we have some more freedom?

12 comments:

patently said...

Gosh what a muddle.

I disagree with you; I think it should be wrong to discriminate in the provision of goods & services. Imagine, for example, if all the food shops in an area decided that they did not wish to sell their wares to gays? Or Jews? Or Christians?

A Vicar who refused to register a civil partnership is not discriminating in the provision of services, though. He (or... grumble... she) is discriminating as to what services he is willing to provide. I commented before that there is no discrimination in marriage law, since gay men are just as free to marry a woman as are straight men. In the same way, if a gay man marries a woman and wishes to register that with a church ceremony, then there is no suggestion that the Vicar would refuse.

What the Vicar is refusing to do is to provide the additional service of registering civil partnerships between gay couples. That is a different and additional service above and beyond the registration of marriages between heterosexual couples.

Suing such a vicar would be akin to suing Tesco because they only sold apples - whereas you wanted to buy pomegranates.

Young Mr. Brown said...

Hello, Mr. P.

I agree completely with your last three paragraphs. And I would hope that a court would see it the same way.

But I am not convinced. At the moment the law in this country does not allow same sex marriages. I think that it is possible that this will change in the next few years. When the first civil partnerships took place a few years ago, a pupil at the local high school who was invited to one actually told her teacher that she was "going to a wedding". If public opinion continues to move in the direction it has been moving in, it is almost inevitable that same sex marriages will be legalised in the UK.

"Imagine, for example, if all the food shops in an area decided that they did not wish to sell their wares to gays? Or Jews? Or Christians?"

All the food shops? It's not going to happen. In the centuries when discrimination in the provision of goods and services was legal, it happened occasionally - but was fairly unusual - the main recent exception being in the Southern states of the USA between the 1860s and 1960s. Members of the discriminated against group went elsewhere or started their own businesses. Such discrimination is, in my opinion, morally unacceptable - but I don't believe it should be illegal - except, of course, when it is practised by the state.

Thomas said...
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Thomas said...
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indigomyth said...

patently said,

//A Vicar who refused to register a civil partnership is not discriminating in the provision of services, though. He (or... grumble... she) is discriminating as to what services he is willing to provide. I commented before that there is no discrimination in marriage law, since gay men are just as free to marry a woman as are straight men. In the same way, if a gay man marries a woman and wishes to register that with a church ceremony, then there is no suggestion that the Vicar would refuse. //

Based on that logic, it would also not be discriminatory if different-sex marriage was made illegal, but all straight men were allowed to marry other men. See, no discrimination!

//What the Vicar is refusing to do is to provide the additional service of registering civil partnerships between gay couples. That is a different and additional service above and beyond the registration of marriages between heterosexual couples. //

Now I play it back to you,

//What the Vicar is refusing to do is to provide the additional service of registering marriage between straight couples. That is a different and additional service above and beyond the registration of civil partnerships between homosexual couples. //

Ahh, but based on your logic, civil partnerships are not discriminatory, are they? Because a straight man can enter into a civil partnership with another straight man, can't they?

So, explain how saying that only a man and woman can marry, is different form saying that only a man and a man can have a CP, given your definition of "discrimination"?

patently said...

Indigomyth, it would indeed be not discriminatory if different-sex marriage was made illegal, but straight men were allowed to marry other men. The same law would apply to all people, straight or gay. Straight men would have the same freedoms, rights and duties as gay men, and vice versa. No discrimination, therefore.

People might object to such a law on other grounds, but discrimination would not be a valid basis for their objection. If you are trying angrily to paint me as a hypocrite, you are not going to get anywhere.

What you are doing is conflating is what people want to do, and who wants to do it. If we say that a certain group of people may not do something, because they are a member of that group, then that is discriminatory – and wrong. If we say that all people may do something, then there is no discrimination.

Now, what is happening here is that one group (gay men) wish to do something that the majority (straight people) do not generally wish to do. There is a debate to be had as to whether, as a matter of compassion and understanding, that group should be allowed to go ahead. But is it not a debate based on discrimination. By attempting to base the debate on an alleged discrimination, supporters of gay marriage seek to ensure that the debate starts with an inherent bias. Instead of discussing “should we make a fundamental change to one of the basic foundations of our society”, the debate suddenly becomes “why are we being unfair to these people”. That then enables the question at issue to be avoided entirely.

If there is a good case for gay marriage, let’s hear it. I haven’t, so far, and I’ve been listening. All I’ve heard is cries of “It’s not fair”, and (frankly) I get a better quality of argument from my primary-school children.



YMB – there are plenty of rural areas where there is only one, or maybe two, food shops. My scenario is quite possible, I think.

If we assume though, that the minority will resolve matters by taking their custom elsewhere to a business run by one of their own, then there are still two problems. First, this business is likely to be smaller than the other businesses, and unable to network in the same way via buying co-operatives etc. Its prices will therefore be less competitive, reinforcing its ghetto status and discriminating economically against the minority concerned. Second, this is a step towards the restriction of that minority to an insular community of like individuals, which will work against their integration into society in general, and thereby foster further discriminatory attitudes. The Jewish people are a case in point; excluded from the guilds and the professions, they turned to the only trade they were permitted to exercise – moneylending. So then society turned on them for being tight-fisted and grasping (aka, asking for repayment of their loan…)

Again, I hold that there is discrimination in refusing to allow a member of a specific group to do something because s/he is a member of the group. There is no discrimination in someone declining to offer a service that they do not wish to provide, but which the group wishes to take up.

Of course, if we sue Vicars for not registering civil partnerships, then the next step is to prosecute supermarkets for not offering a full range of ethnic foods in all their outlets.

Young Mr. Brown said...

"YMB – there are plenty of rural areas where there is only one, or maybe two, food shops."

Thank you for that comment, Mr. P. You are correct. I know a village which has only one food shop, and the nearest alternative food shop is 16 miles away. In that village, the majority of people do most of their food shopping in towns several miles away - simply because the shop is small, and does not carry a large range of products. I know a person in this village who, for many years, didn't darken the door of the local shop at all - because of a 'difference of opinion'.

And hence, in saying "It's not going to happen" - I exaggerated. It could happen.

However:

1) It is extremely unlikely, because such rural shops need every customer they can get, and any rural shop that chooses to turn away customers is harming itself.

2) As the example of my friend above shows, people who are refused goods and services from rural businesses are rarely greatly disadvantaged.

3) Those who do find themselves refused goods and services have the option of moving elsewhere.

4) They also have the option of promoting a boycott of businesses that displease them.

5) And, IMHO, if one repealed the laws prohibiting businesses from discriminating in the provision of goods and services, the number of businesses that would do so would be tiny.

Thomas said...
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indigomyth said...

patently,

Thank you for your response.

//If we say that a certain group of people may not do something, because they are a member of that group, then that is discriminatory – and wrong. If we say that all people may do something, then there is no discrimination. //

Hmmm, could we not then argue that the principle of gender-restricted marriage is discriminatory against men and women.

Under the current system men are denied the right to marry other men, a right that is enjoyed by women, and women are denied that right to marry other women, a right enjoyed by men. Does this not fit into your definition of unacceptable discrimination? Men are being denied the right to marry other men, on the basis of their gender, and women are being denied the right to marry other women on the basis of their gender. In this case, certain groups of people are being denied rights enjoyed by others groups, merely because they are a member of that group.

Based on your definition of discrimination, would you consider laws against miscegenation discriminatory? They would apply equally to white people and black people, would they not? A law banning the marriage of anyone to a person of the opposite race could be applied indiscriminately, to whites and blacks, and therefore still be seen as egalitarian?

//Instead of discussing “should we make a fundamental change to one of the basic foundations of our society”, the debate suddenly becomes “why are we being unfair to these people”. That then enables the question at issue to be avoided entirely.//

Well, it depends it you think it is the states role in defining those things. I do not. It is unfair to deny someone the right to practice their religious convictions, provided they do not limit another persons liberty - it is unfair to restrict the religious freedom of those that wish to conduct homosexual marriages. It need not be "discriminatory" in order to be unfair. In the same way it is not discriminatory to ban Bible and crosses, provided that that is done equally, to atheists and Christians alike - it is not discriminatory, as it forces everyone to give up Bibles and crosses, but it does limit the liberty of everyone. I see it more as an infringement on liberty, rather than as an issue of discrimination (other than the discrimination against the religious practice of homosexual marriages).

indigomyth said...

patently,

//Of course, if we sue Vicars for not registering civil partnerships, then the next step is to prosecute supermarkets for not offering a full range of ethnic foods in all their outlets.//

One could make a credible case for doing so, had one paid a large some of money to the supermarket with the understanding that they would do so.

patently said...

miscegenation ....

Your argument only works if you consider black and white people to be, in some fundamental way, different. I do not.

Men and women are, on the other hand, different in a fundamental way. So your counter-example (although clever!) fails.

One could make a credible case for doing so, had one paid a large some of money to the supermarket with the understanding that they would do so.

Yes, in that circumstance it would be reasonable to sue them (but not to prosecute them). Such a case would be under the civil law of contract, not the criminal law of discrimination, though.

Your example is interesting - you seem to apply discrimination law to anything that you feel is unfair. If that is an accurate summary, then I must disagree with you. Many things that are unfair are not in any way discrimination, and to call them such debases the currency of discrimination.

Some unfairnesses are illegal for other reasons, some are legal but immoral, and some are legal and not universally accepted as immoral. There is an important distinction between "unfair" and "discrimination".

indigomyth said...

patently,

//Your example is interesting - you seem to apply discrimination law to anything that you feel is unfair//

No, I was exploring the possible conclusions, given the premises. As I say, not everything that is unfair is discriminatory, and, conversely, not everything fair is not discriminatory.

//Men and women are, on the other hand, different in a fundamental way. So your counter-example (although clever!) fails.//

But then, in the purest sense of the term "discriminate", marriage law does discriminate against men and women does it not? In the sense that "discriminate" means to make a distinction between things, marriage law does make a distinction between men and women, and therefore does discriminate between them. Now, whether that discrimination is correct or incorrect, just or unjust, is a different matter entirely. My point is to demonstrate how it is logically true that marriage laws that specify gender, MUST discriminate between men and women.

//Your argument only works if you consider black and white people to be, in some fundamental way, different. I do not. //

Ahh, but my point was to establish whether it was discriminatory, not whether it was just or unjust. In the sense that you have applied the term "discriminatory", then, miscegenation laws are discriminatory - they discriminate based on race, the same as gendered marriage laws discriminate on sex. Whether that discrimination is correct or incorrect, just or unjust, is an entirely different matter.

//There is an important distinction between "unfair" and "discrimination"//

I agree entirely. It is discriminatory for Mensa to deny membership to stupid people, but I would say that is fair. I am not a neo-liberal, so do not have a problem with private discrimination/