Sexual orientation, religion and the courts’ increasingly difficult role

14 July 2010 by

The courts’ relationship with religious principles is rarely out of the spotlight, and recent decisions have provided more fuel for this debate.

Aidan O’Neill QC, writing on the UK Supreme Court Blog, provides an interesting discussion of last week’s Supreme Court decision in HJ (Iran) in the context of a series of controversial United States decisions on sexuality and religion.

We posted last week on the case of HJ (Iran), in which the Supreme Court ruled that policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights. Rosalind English examined the case in the context of a European Court of Human Rights rejecting a complaint by a same-sex couple that Austria was in violation of the Convention for not granting them the right to marry.

Of particular interest is a passage he points out from Lord Hope’s speech, where he refers to the ultra-conservative interpretation of Islamic Law that prevails in Iran as a “misguided but vigorous religious doctrine”, leading a US commentator to question, legitimately, what gives this court the authority to determine whether a particular religious interpretation is “misguided”. Of course, the US is far more sensitive to such issues than the UK, notwithstanding some recent local controversies.

O’Neill considers that the court is fulfilling its legitimate function, arguing tha

his objection to Lord Hope’s use of the word “misguided” itself seems to be misguided, in that it is clear from the passage quoted that Lord Hope was not there seeking to make any theological point, or to suggesting that the anti-gay views expressed were not in fact true expressions of the particular religious beliefs described. Rather the tenor of the whole court’s decision in HJ (Iran) is that that those religious beliefs when acted upon are morally wrong because inimical to the proper respect for individual human dignity that is incumbent upon all States and societies.

He concludes:

The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world. An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge. There is no usurpation of power in the judges so doing in this particular case.

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