Aidan O'Neill responds to Michael Scaperlanda

I posted something from Aidan O'Neill yesterday, here.  Michael S. weighed in, here.  Now, Aidan's response:

 [Michael S. asks:]  “What gives this court the authority to determine whether a particular religious interpretation is misguided?"

I think that by using the word “misguided” the court is not suggesting that the views expressed are not in fact true expressions of the particular religious beliefs described, but rather 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.  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, and I see no usurpation of power in their so doing in this particular case.

[Michael S.:]  “Is the court really implying that religion is less important to a person’s identity than the ability to act on one’s sexual orientation simply because it can be changed?”

I think the main point about the decision is that the court rejects the distinction between acting on one’s sexual orientation and being of a particular sexual orientation.   That is the very point of the argument before it, which was to the effect that the UK Government said that it could properly send back avowedly gay men to Iran and Cameroon respectively on the basis that if they were to be discreet (not - openly -  act on their sexual orientation) they would not invite persecution.   But the court rejected this claim noting that to be of a particular sexual orientation was not simply a matter of (not) acting on particular urges to have sex.   Rather being gay carried for an individual a whole weight of meaning and behaviour and outlook because it was an integral part of their personality: not necessarily in any senses definitive of them, but central to them.  Thus to suggest that some not act gay was to tell them not to be who they were made (by God, or genes, or upbringing - or a combination of all three) and that any such demand was an affront to the respect for human dignity that a properly informed human rights culture requires.  Against the moral background provided by the principle for respect for individual human dignity required by a culture informed by human rights, the court is saying no more than Polonius tells his son Laertes in Hamlet:  “This above all: to thine own self be true, And it must follow, as the night the day, Thou canst not then be false to any man.”

It might also be said that the court was therefore saying that being of a particular sexual orientation could not be said to be a matter of individual lifestyle choice (in the way that choosing to covert to or follow particular religious practices might be).   Whether this analysis has implications for other aspects of the law is a matter for another blog post and other cases in the UK and, doubtless, other jurisdictions.