There’s nothing Enlightened about the new equality law

There could be no better illustration of the extent to which modern-day liberals and humanists have lost their way than their current clamouring for more state intervention into religious affairs. Their only criticism of the government’s new equality legislation – dreamt up by New Labour and enacted by the Liberal-Conservatives on Friday – is that it doesn’t go far enough in forcing religious groups to modify their ’employment practices’ to bring them into line with the rest of society. They seem blissfully unaware of the fact that the Enlightenment creed of liberalism, which they claim to represent, sprang precisely from a principled opposition to the invasion of the civil authorities into matters of faith.

The Equality Act, which became law on 1 October, was spearheaded by Labour’s Harriet Harman when she was equalities minister. In many ways it’s just a bureaucratic bundling together of various different laws into one act: the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and so on. But some problematic and hectoring new rules have been sellotaped to this sweeping act. First, the act invites tighter policing of our everyday speech and interactions at work through its promise to protect employees from any form of offence, whether real or perceived, in relation to their now ‘protected characteristics’. No more office bitchiness, then. And second, the act will soon have an ‘equality duty’ attached, which could be used to force private societies, including religious groups, to engage with and treat equally even people they consider to be sinful or immoral.

The controversial ‘equality duty’, which various religious groups have criticised, was passed as part of the act on Friday but it won’t come into force until April 2011. It will put pressure specifically on public bodies to adhere to every aspect of the new equality law, but there are concerns that it might eventually be used to put pressure on private societies not to discriminate against homosexuals, for example, or women. It could ‘threaten religious liberty’, claims one Christian campaigning outfit, by imploring Catholic adoption agencies to deal with homosexual couples or informing religious schools that they must educate children about the acceptability of the transsexual lifestyle.

Yet strikingly, the only criticism of the act proffered by the humanist lobby is that it doesn’t go far enough in forcing religious groups to genuflect at the altar of diversity. In its current incarnation, they complain, it contains too many get-out clauses for religious outfits, allowing them to continue discriminating to a certain extent. The Equality Act gives ‘excessive privileges’ to religious organisations, says the British Humanist Association, still allowing them to ‘discriminate on grounds of religion or belief or sexual orientation’. Another secularist group says it campaigned hard to ‘eliminate religious privilege’ from the act, by limiting the extent to which religious schools and outfits can opt out of the equality duty and choose not to employ homosexuals, for example, or ordain women priests. One humanist commentator claims the act is a sign that ‘the public mood has hardened… against the claims of faith and its assertion of the “rights of conscience”’.

This may look like a clear-cut stand-off between Good People who want to prevent religious societies from discriminating against individuals simply because of their gender or who they choose to have sex with, and Bad People standing up for the right of religions to refuse to have ‘infidels’ or ‘sinners’ skulking around their churches, charities and schools. But it’s more complicated than that. The modern ideal of tolerance, so key to Enlightenment thinking, emerged from a principled philosophical opposition to the right of governments to determine what private religious groups could believe and think and how they were organised and how their membership was constituted. In calling for the state effectively to circumscribe religious groups’ rights of association – that is, to dictate whom they should deal with and whom they should employ – contemporary humanists are advertising their lack of understanding, or worse their lack of regard, for the Enlightened principle of toleration.

In one of the earliest outlines of the modern ideal of tolerance, ‘A Letter Concerning Toleration’ published in 1689, John Locke, the English philosopher later tagged as the ‘father of liberalism’, argued for ‘the toleration of those that differ from others in matters of religion’. He argued against the right of the civil authorities to punish any man simply because he belonged to a certain church. No ‘civil magistrate’ has the right ‘to prejudice another person in his civil enjoyments because he is of another church or religion’. His aim was to ‘distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other’. Where government should be concerned with ‘outward’ things, such as property and security, religion is concerned with ‘inward’ things, such as faith, belief, conscience and ‘the salvation of souls’. As such, argued Locke, ‘the care of souls is not committed to the civil magistrate’ and a man should be made to endure no ‘corporal sufferings or any other outward penalties’ simply for his membership of a certain church. It was an early and clear defence of the right of conscience and freedom of belief – of the sovereign individual himself – against ‘zealots who condemn all things that are not of their mode’.

Locke recognised that for toleration to exist as a living, breathing principle, then religious groups had to be free to write their own constitutions and internal laws. Describing a church as a ‘free and voluntary society’, a ‘spontaneous society’, ‘a society of members voluntarily uniting to a [certain] end’, Locke said it ‘necessarily follows that the right of making its laws can belong to none but the society itself… to those whom the society by common consent has authorised thereunto’. Specifically, a church should have the liberty both to welcome those who adhere to its beliefs and to shun or expel those who do not. While it is incumbent upon the civil authorities to tolerate men’s faith and not to punish or discriminate against any individual on the basis of what he believes, such a duty does not extend to churches themselves, argued Locke.

‘I hold that no church is bound, by the duty of toleration, to retain any such person in her bosom as, after admonition, continues obstinately to offend against the laws of the society.’ Why? Because Locke recognised that a church that was unable to use its own internal laws to cast out ‘offenders’ would cease to be a church, to be a free and voluntary ‘spontaneous society’ built around a common end. ‘[T]hese [laws] being the condition of communion and the bond of the society, if the breach of them were permitted without any animadversion, [then] the society would immediately be thereby dissolved.’ This is the ‘fundamental and immutable right of a spontaneous society’, said Locke: ‘that it has the power to remove any of its members who transgresses the rules of its institution.’ Otherwise it would not be a ‘spontaneous society’ at all, and would ‘dissolve’. (Locke went on to say that ‘care [should be] taken that the sentence of excommunication, and the execution thereof, carry with it no rough usage of word or action’.)

No doubt many of today’s humanists, those who ironically fancy themselves as the intellectual sons and daughters of the Enlightenment, would denounce this as an unacceptable ‘get-out clause’. After all, Locke stipulates that the civil authorities should be tolerant and should inflict no corporal suffering on a man because of what he believes, yet he argues that this duty of toleration does not always extend to churches and other spontaneous societies, which should be free to expel someone who believes or thinks or behaves in a fashion that contravenes the internal laws of their society. Yet this is no mere ‘get-out clause’ or unacceptable contradiction – it is the stuff of Enlightenment itself. It is the distinction between our ‘outward lives’, our public duties and our civil existence, and our ‘inward lives’, what we believe and think, which is an arena where no civil authority should have jurisdiction. Both the argument that the civil authorities should tolerate various belief systems and the argument that individual churches should not have to tolerate non-believing or what they consider to be ‘sinful’ individuals are aimed at preserving the fundamental freedom of conscience; the freedom of the individual to believe what he wants and to join private societies that reflect and uphold those beliefs.

Of course, tolerating a faith does not mean having to like it or respect it or celebrate it. Too often today, ‘tolerance’ is confused with ‘recognition’, where it is not enough simply to say ‘yes, that spontaneous society must be allowed to exist’, but apparently we must also say ‘isn’t that spontaneous society making a wonderful, equally valid contribution to society?’. Locke wouldn’t have recognised this warped idea of tolerance-as-relativism, since he also defended the right to try to change the minds of those who belonged to certain churches. ‘In teaching, instructing and redressing the erroneous by reason, [we] do what becomes any good man to do’, he argued. However, ‘it is one thing to persuade, another to command; one thing to press with arguments, another with penalties’. In clamouring for the state to punish with outward penalties those spontaneous societies that refuse to associate with people they deem untoward, modern-day humanists have ironically turned themselves into ‘zealots who condemn all things that are not of their mode’.

Brendan O’Neill is editor of spiked. Visit his personal website here.