The Problem with Nondiscrimination Laws and the Rights of Homosexuals

I hate discrimination. I believe that when it comes to barring people from public places civil rights laws are quite necessary. I also believe that discrimination against homosexuals, because of their sexual orientation or private practice, is wrong. We presently face a number of legal struggles about discrimination that will impact all of us in one way or another. Let me explain what I mean with an intriguing development out of Great Britain. 

Fifteen years ago Peter and Hazelmary Bull made headlines when some reporters saw their "stodgy guest policy" (Wall Street Journal, 3/16/12) in these words: "No double rooms for unmarried couples." Since 1986 the Bulls had been turning away unwed couples at their Cornish B & B. No one bothered much until very recently. They just considered the Bulls out of touch. But things have changed now and this change is happening all across the West. 

A British appeals court recently upheld a stiff fine against the Bulls for turning down two men who wanted a room in their B & B 2008. These two men were joined in a legal civil union. (Great Britain has accepted civil unions since 2005.)  The Bulls, who refer to themselves as "born again Christians," feel they should decline such guests. The charge against them is that they violated the 2007 Equality Act. They have now appealed to the U.K. Supreme Court and if they lose they will appeal to the European Court of Human Rights. (They are being represented by a very conservative Christian legal group.) Current British law exempts some from nondiscrimination laws, especially churches. But commercial guesthouses do not get such an exemption, thus the battle with the Bulls and their house. 

Here is the point. The Bulls are allowed to hold their convictions in private but they cannot practice them in regards to their B & B because it is a "service and public function."  The Bulls are seeking "reasonable accommodation or expansion" for enterprises such as their own business. Here is the problem. The equality law is constructed to allow religious liberty only within a religious organization. Anne Jolis, writing in the Wall Street Journal, adds, "That's true enough, though Britain's equality and nondiscrimination rules already have more loopholes than a coherent principle can bear. A case in point involves British Airways, a private business that has had the better luck enforcing its standards under Britain's patchwork of rights, responsibilities and opt-outs." 

A dispute with British Airways (BA) now makes its way to the European Court of Human Rights. In this case BA has a long-standing dress code that bars employees from wearing visible religious symbols. In 2006 a check-in attendant named Nadia Eweida refused to stop displaying her crucifix and then refused a job that would have placed her in a non-public place with BA. She was placed on unpaid leave for six months. Subsequently BA relaxed its policy in 2007. British courts rejected her claim and BA was not forced to pay her back wages. She is now arguing her case before the European court in Strasbourg. Her argument? The UK court failed to protect her religious rights to nondiscrimination in the workplace. The government's argument, in this case, is actually based on the fact that Christianity does not require a believer to wear a symbol of their faith. (To be honest about this, I have to agree with this interpretation!) Wearing such a sign does not constitute the "practice" of the Christian faith. She is thus engaging in behavior that is "inspired by belief" but not essential to her expression of Christian faith. The court also argued, and this is a more persuasive point, that a private company has no "positive obligations to ensure this right." Her rights were not violated since she was "free to resign and seek employment elsewhere." 

But here is the problem with the argument of the Bulls with regard to their B & B. Just as no one forces Christians who wear symbols to work for secular-sensitive airlines nothing should compel a same-sex couple to lodge at a B & B that seeks to run its business by their Christian principles. In the case of the Bulls the government's position, says the Wall Street Journal "comes down to the fact that no one forces Christians to open businesses." 

A Downing Street spokesman said a few weeks ago that if a European court finds against Ms. Eweida, then the government may look into new protections for religious workers against private standards such as dress codes. The Wall Street Journal concludes: "That might satisfy devout Britains for a while, as would a new carve-out for religious business owners such as the Bulls–at least until the next time anyone's convictions, mores, practices or habits conflict with anyone else's in the country. Meanwhile, these small victories will only further muddle companies' freedoms to dispose of their resources as they see fit–regardless of faith, sexual orientation, or ever-changing estimations of political expedience."

These same types of arguments are already playing themselves out in the legal and political culture of the U.S. If you think this is simply a matter of "equality" or "prejudice" then I believe you clearly fail to grasp the deep significance of the points made above. Does this rise to the level of refusing service to a black person in a hotel or restaurant in the 1960s? It could if you are really honest about it. Does a company have the right to make standards about how employees should dress when the public will engage with them? I think so. But does this mean that there can be no show of religion in such a place? What about Muslim female employees who wear the traditional head coverings? I would guess this would be allowed because it would be seen as part of the practice of Islam.

I, for one, am not profoundly alarmed by this debate. Thus I do not agree with Christians who see all of this as a form of persecution. But I also do not agree that all laws against discrimination are entirely equal. This seems to be the reason we are still working this out in public contexts. I hope Christians will keep a cooler temperament about these debates and contribute to the future by helping us end discrimination against homosexuals wherever possible without sacrificing our religious freedom in the process. The way forward is slippery. Many challenges will have to be faced legally. I pray that we will respond with civility and grace in how we engage in these struggles about the law. I do not believe my rights are under constant assault. I do not believe there is a vast conspiracy to deny me my faith or to stop my public practice of Christianity. I do believe the way I can express my faith is changing and it is only right that I observe this and respond where I can since mission must always be contextualized if it is done well. At the same time I am committed to the open practice of religious freedom. If religious freedom is only a private right then we have lost a vital freedom for all of us, including homosexuals, blacks, non-Christians, etc. This debate will not end soon. Let us pray for wisdom in how we respond. There will be plenty of heat from the far left and far right but Christians should look for better ways to show the love of Christ in public.