Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, July 7, 2010

Troubling opinions in the UK's asylum case

Michael P. brings us news of an asylum case out of the UK, which grants asylum to homosexuals based on their membership in a particular social group.  Under the law, a person can be granted asylum if they are threatened with persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion."  (Michael P., forgive me in advance for my lack of technical nuance here, but the differences between asylum and nonrefoulment aren't relevant to this discussion). 

Setting aside the important questions of a) whether the amorphous category of "particular social group" ought to be extended to include practicing homosexuals and b) in what circumstances "prosecution" under a country's law  constitutes "persecution," Lord Hope's opinion contains some troubling reasoning.  

First, in paragrah 2, he states:  "fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another." 

What gives this court the authority to determine whether a particular religious interpertation is misguided?  And, by what criteria is this secular court declaring that a particular interpretation of Islam or a particular group of Christians is misguided in their religious doctrine?  Rather than just sticking to the secular law of England, this court has gratuitiously opined on theological matters. And,  I suspect that this sort of foray, concluding that the  religious doctrine of "ultra-conservative" Muslims and "right-wing evangelical Christians" is "misguided" has application far beyond this aslylum case.  Any thoughts?

Second, in Paragraph 11 (highlighted by Michael P.), Lord Hope states:  "The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are....."

Is Lord Hope suggesting that acting on one's sexual impulse is more important than the allegiance we owe to God as we understand God?  Religions can be changed, but sexual orientations (and the corresponding behavior) can't he says.  I know people who have changed their sexual orientation and I also know people - both heterosexuals and homosexuals - who are celibate, but I'll readily admit that in our culture I have known many more people who have changed their religion than have changed their sexual orientation or who have decided to remain celibate.  But that seems largely beside the point.  Is this Court really implying that "religion" is less fundamental to a person's identity than the ability to act on one's sexual orientation simply because it can be changed?  Or, am I reading too much into this?  If I am reading this accurately, what are the implications of this sort of reasoning outside the asylum context?



Scaperlanda, Mike | Permalink

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