Religion & Law

MOJ-friend Aidan O'Neill has posted some "reflections" on the recent decision by the U.K. Supreme Court regarding homosexual asylum seekers.  Our own Michael S. discussed the case in this post, and in this one.

As Aidan notes, one of the aspects of the Court's decision that could be troubling is that it "rejects the cogency of any distinction between acting on one?s sexual orientation and being of a particular sexual orientation."  And, this aspect of the decision -- which, if I read the piece correctly, Aidan embraces -- is, of course, highly relevant both to our Court's recent decision in the Christian Legal Society case, but also to the soon-to-announced invalidation by a federal trial court of California's rejection of same-sex marriage.

Aidan concludes with this:

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.

The hard part, I guess (and I'm sure Aidan agrees), is identifying what those "absolute moral values" are that are appropriately "captured in the concept of 'human rights.'"  He and I agree, I think, that it is unobjectionable to characterize (in the right context -- see my post, below, on judges and the natural law) s "misguided" an action by a non-state institution (including a religious institution) that "contravene[s] fundamental human rights."  (It is, for example, "misguided" for mainline Protestant churches in America to support our country's abortion-rights regime.)  What is worrisome (to me), though, is the ongoing attempt to exclude moral arguments made by religious people from the debate about what are "fundamental human rights."