Supreme Court Judge Lady Hale

Supreme Court Judge Lady Hale

By Dida Halake, London UK.

Editor,

The UK’s only Supreme Court woman judge, Lady Hale (whom I once described admiringly as “one Hell of a Lady”) has taken the Gay Debate to the hallowed lecture hall of Yale Law School. (Lady Hale’s most notable judgement at the UK Supreme Court is Z Tanzania which underlined that the welfare of children is of primary consideration in English Law – though an experienced cynic might add “for what it’s worth”!)

Lady Hale states, at the outset of her lecture, that “England is one of the least religious countries in Western Europe … According to the British Social Attitudes Survey half the population do not belong to any religion …”

That is the Western social context from which the Western countries have decided that the Biblical and Koranic teachings of man and woman marriage would be oppressive to the half of the population who are not religious. On the other hand, Africa is one of the most religious continents in the world. It is this difference in attitude to religious beliefs between the West and Africa that is important in explaining, and indeed justifying, the different attitudes to homosexuality.

Further, Lady Hale quotes the European Human Rights Convention as follows:

“ … European Convention on Human Rights … Article 9.1 … Everyone has the right to freedom of thought, conscience and religion … but freedom to manifest one’s beliefs can be subject only to such limitations as are … necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

I think we have convincingly argued previously that African societies have historically been very tolerant of homosexuality. But in the current political climate where Western irreligious imperatives (50% of people not holding any religious beliefs) have driven them to grant homosexual life-styles the same status as traditional marriage, Article 9.1 does, properly interpreted, allow African communities which are overwhelmingly religious to reject homosexuality “ … in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

That is the European Convention on Human Rights. If that Convention can be used to sack Christians and run them out of business in non-religious England (Lady Hale gives examples), that Convention can equally be applied to the protection of religious African societies – “in the interests of … morals … and freedom of others” (“others” in this case being the 99% of the population in the African context). Quite clearly, the pronouncements of Western Governments and Western Human Rights Organisations on Africa and the Gay-issue are deliberately twisted to avoid the application of their own logic vis-à-vis human rights and the interests/welfare of the community as a whole. There are clear double-standards at work.

In the West where the population of the Godly and the Godless are evenly balanced, Lady Hale’s and the courts “balancing of rights” exercise cannot be faulted: she says “ …. example which has come up most frequently so far is the right of people not to be discriminated against because of their sexual orientation and the right of Christians to manifest their belief that same-sex relationships are wrong”.

As Lady Hale explains, because of England’s laws passed by the Westminster parliament, the UK Christians have lost.

In the African context, where 99% of the population is Godly and non-Gay, the West’s “balancing of rights” exercise would be completely misconceived: the African courts simply need to go by the laws passed by the African parliaments and, where a “balancing” exercise is necessary, follow Article 9.1 of the European Convention on Human Rights (“ … in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”) to protect the interests of the African public. For, as Lady Justice Rafferty is quoted by Lady Hale:

“ … a democratic society must ensure that the defendants (Christians) could still espouse and express their beliefs … It would be unfortunate to replace legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)”.

But Lady Rafferty’s concerns are for the West, not for Africa as there are no “homosexual couples” out there in the African townships and villages!

On a final note, the equally admirable Lord Justice Laws is quoted by Lady Hale at length:

“… there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content … the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled; it imposes compulsory law not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since, in the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may, of course, be true, but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer who is alone bound by it; no one else is or can be so bound, unless by his own free choice he accepts its claims.

This is a rather complicated philosophical argument on which numerous PhD theses have being written without an answer being found: what, for example, is “the general good”, who defines it, by what authority and by what “objective” yard stick?. Lord Justice Laws may say that “religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence”, but so is much of what goes on in courts up and down the country every day. Our judges and juries send people to jail on “fact findings” that are subjective – which witness the judge has “preferred” – rather than any kind of objective scientific proof or evidence. People have been sent to the death chamber in the US on such “subjective” evidence for them only to be found not guilty after 20 years on Death Row.

But to be fair, Lord Justice Laws does make the statement referring specifically to England and its values. My point is that in those countries where religious beliefs are infact not seen as “subjective” – beliefs that are based on an objective reading of the Bible and the Koran for example – then there is nothing wrong with the laws of those societies mirroring their beliefs: Saudi Arabia, Iran, for example. And of course, Western values are also based on “subjective” Judeo-Christian teachings and beliefs – although again I would not consider them “subjective”. For example, most of our laws are based on the 10 Commands (“Thou shall not kill”, “Not commit adultery”, “Not commit perjury”, “Not steal”, etc.). Which makes it all sound as if Lord Justice Laws is saying that: “Our Subjectivity is Objectivity … but their Subjectivity is Subjectivity”!! Which reminds me of a conversation half-a-life time ago: my professor asked me “Dida, what exactly is objectivity for you!” I answer: “My Subjectivity + Your Subjectivity = Objectivity” … let’s meet somewhere in the middle! (I think that is common-sense and I would not be offered the Nobel Prize for any discovery!).

But Lord Justice Laws does provide an answer for those countries that are almost completely religious when he says:

“ … religious faith is necessarily subjective .. it lies only in the heart of the believer who is alone bound by it; no one else is or can be so bound, unless by his own free choice he accepts its claims.” Many communities in Africa and the Middle-East are bound by the truth of their religious beliefs through their “own free choice”.

Lady Hale’s Lecture at Yale, “Religion and Sexual Orientation: The clash of equality rights”, is accessible on google.

Courtesy of Lady Hale of UK Supreme Court

Ends

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