Thank you for the invitation to talk about the 30th anniversary of decriminalisation this very week, a moment to celebrate freedom and emancipation. A week where the most drastic of criminal penalties were lifted from a small but numerous minority.
It is worth remembering that in law books and in parliamentary debates, homosexual behaviour used to be referred to by the Latin formula “peccatum illud horribile” – that horrible crime – “inter Christianos non nominandum” not to be named among Christians. Men in early Victorian times when convicted of sodomy were hanged, something enthusiastically applauded.
A victory was won with the vote in the House of Commons but the response from the establishment here, and in London, was, and to an important degree remains grudging and hesitant. There were to be no reparations for the past as also was the case after the slaves were freed in the US – but not in the case of Germany at Versailles.
No Northern Ireland MP voted for reform, indeed several who were or had been gay actually voted against. A staggering fact. Colossal hypocrisy. Only in Northern Ireland which also reminds me of later amazing events concerning the family Robinson.
And there was to be no inclusion of Northern Ireland in consequent reforms like the age of consent and civil partnership, without yet another wearying campaign.
I have prospered, but our opponents in the ‘Save Ulster from Sodomy’ campaign prospered mightily, becoming successive Northern Ireland First Ministers. Their campaign however failed, and it is they who are softening their now hard antagonism.
The lawyers for the UK government arguing against decriminalisation became respectively the Lord Chief Justice of Northern Ireland (Lord Brian Kerr) and the President of the ECHR (Sir Nicolas Bratza).
Most younger people just can’t believe such criminalisation ever existed. Of course it was frightening, perhaps more in its potential than in its enforcement. But it could be, and was unexpectedly enforced in Belfast in 1976, when the authorities became agitated at what they took to be a conspiracy to change the law and of a new generation’s willingness to live openly outside it. Many were arrested.
Obviously we were able to look back thirty years on worse times – the German experience when many hundreds of gays were rounded up and the majority worked to death in concentration camps. But that had become history, just as the era of criminalisation is now history.
And younger LGBT people are now concerned about those inequalities and restrictions which might to me seem less onerous, but definitely not to them. I refer to the adoption issue, blood donations and, most controversially for churches, gay or equal marriage.
I have to say, I believe this last one will not come easily or quickly to England with the House of Lords likely to reject it, nor will it come to Northern Ireland via the Assembly. The courts will be the motor for change, as before.
And I have not mentioned disputes, particular to the Church of Ireland, like ordination. The Anglican church is, and will be, the front runner on many such issues but it would a great and unnecessary pity if they lead to splits and departures. I wouldn’t have said this in 1976 and rightly shouldn’t have, but there is a middle way and while acrimony should at all costs be avoided.
I was struck this morning, listening to former President Mary McAleese, in a Sunday Sequence interview with William Crawley, regarding her new book on canon law, by her words: “In charity and love the church must send a new message to our gay brothers and sisters.”
In addressing you now, I believe this Church, for one, has sent that message, and it is appreciated.
In return, we must avoid disrespecting religion and the Christian beliefs of many who are not advancing at the same speed.
I am of the view, in relation to some aspects of UK equality law, particularly employment discrimination, and in turn the decisions of the European Court of Human Rights – whose judgment in my case in 1981 obliged the government to decriminalise homosexuality in Northern Ireland and for which I am eternally grateful – that they need reviewed and refined.
As one lawyer wrote: “There does seem to be a good argument for a different approach to cases where religious belief clashes with discrimination law…Although the protection of the holding of a belief under Article 9(1) of the European convention is absolute, the protection of manifestations of belief under Article 9(2) is interpreted so narrowly as to have almost no impact at all.
…As the UK Government recently argued [and I would say wrongly argued] before Strasbourg the reading of Article 9(2) by the European Court in previous cases has the effect that if people find their religious beliefs conflict with their jobs, they should either ‘leave their beliefs at home or get another job’.
Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the church, mosque, synagogue or temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.
The writer added “But the principle of non-discrimination on grounds of sexual orientation is also hugely important, and carving out exceptions would make it meaningless. Reconciling the two is difficult, but there must be a means of doing so that ensures religious freedom is more than just the freedom to believe what you want in private, and which celebrates and protects the fact that we live in a society which tolerates all kinds of different belief systems.”
I would however move in the other direction in relation to one aspect of Northern Ireland law (with its concomitant EU exemption), and that is the exception for schools from fair employment law when employing teachers. They can discriminate on grounds of religion, and do.
EU Council Directive 2000/78 reads deceitfully “In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland.”
In conclusion, may I pay tribute to Changing Attitude Ireland (CAI) whose efforts in the Church of Ireland have been illuminating and extensive?
We must also hope and pray that two of Northern Ireland gay society’s most assiduous reformers, PA MagLochlainn of NIGRA and Rev Mervyn Kingston of CAI who are going through the trial of accelerating illness are given respite, and can return to a degree of strength to continue their work.
Jeff Dudgeon MBE
28 October 2012