In a speech on human rights and religious faith, the Archbishop of Canterbury has told an audience in Geneva that laws should restrict discrimination against gays and other minorities but should not be used to actively ‘promote change’ within a culture on issues like marriage.
Dr Williams said human rights law “falls short of a legal charter to promote change in institutions”.
He argued that while laws should prevent certain actions, including discrimination against gays, positive “change” must come from cultures themselves.
He also spoke of communities concerns that an “alien cultural standard” was being “imposed” on them regarding, among other issues, equal marriage rights for gays.
In a lengthy speech, he talked of the “anxiety” among religious people that rights law was being “used proactively to change culture”.
On whether the law needed to change culture in order to redress an imbalance for under-protected groups, he said: “Not exactly: when the law establishes protection or equality of access to public goods for a previously disadvantaged person or group, it declares that an agreed aspiration to a culture of dignity is damaged or frustrated by unequal protection and access.
“It secures what the very institution of a law-governed society is intended to embody [...] Now laws change as societies become more conscious of what they are and claim to be; as I have said, it may take time for a society to realize that its practice is inconsistent – with respect to women and to ethnic, religious or sexual minorities.
“Law may indeed turn out to be ahead of majority opinion in recognizing this, but it has a clear argument to advance – that the failure to guarantee protection and access is simply incompatible with the very idea of a lawful society.
“But this falls short of a legal charter to promote change in institutions, even in language.”
Dr Williams argued that laws protecting people from abuse and systematic discrimination are ‘negative’ in nature because they restrict actions but that a law allowing gay to marry would be ‘positive’ as it promoted change, and promoting change was not the role of law.
He added: “If it is said, for example, that a failure to legalise assisted suicide – or indeed same-sex marriage – perpetuates stigma or marginalisation for some people, the reply must be, I believe, that issues like stigma and marginalisation have to be addressed at the level of culture rather than law, the gradual evolving of fresh attitudes in a spirit of what has been called ‘strategic patience’ by some legal thinkers.”
Many critics of the ban on gay marriages argue that it is, in itself, systematic discrimination and that the introduction of equal marriage would in fact be a ‘negative’ law of the kind Dr Williams described.
The Archbishop did not speak about whether cultural support for marriage equality was growing nationally.
Dr Williams went on to say that institutionalised discrimination against gays has “no justification” in lawful societies and is similar to racial prejudice.
He adds: “Laws that criminalise certain kinds of sexual behaviour need the most careful scrutiny: legislation in this area is very definitely to do with the protection of the vulnerable from those with power to exploit and harm [...] Go beyond this, and the territory is a lot more slippery. Many societies would now recognize that legal interference with some sorts of consensual sexual conduct can be both unworkable and open to appalling abuse (intimidation and blackmail).
“This concern for protection from violence and intimidation can be held without prejudging any moral question; religion and culture have their own arguments on these matters.”