The queer, the cross and the closet: a critique of rights discourse in conflicts between religious belief and sexual orientation

Abstract

The clash between religious belief and sexual orientation has become a key flashpoint in modern rights struggles. A decade after the first recognition of lesbians and gay men in UK equality law, the conflict continues to be played out in domestic courts and in the European Court of Human Rights. This conflict is a microcosm of the wider relationship between law, religion and homosexuality, and the discursive techniques deployed by legal and political actors – of which liberal rights discourse plays a key role. This thesis uses a Foucaultian-informed Queer lens to analyse the discourses and underpinning structures that limit the inclusion of non-heterosexuals in the public sphere.

Recent case law has highlighted a shift in religious conservative discourse, which now disavows homophobia while seeking reasonable accommodation of religious rights and conscientious objection to homosexual equality in employment and the provision of goods and services. This perpetuates the notion that religion deserves special treatment because of a necessary relationship between religious belief and disapproval of homosexuality. This binary approach not only negates the experience of Queer religious people; it also masks the state’s constructive delegation of homophobia through religious exemptions to equality law. These effects represent harms to gay people, constituting degrading treatment contrary to Article 3 of the European Convention on Human Rights.

Liberalism’s universal human subject of rights was constructed through the heteronormative and theonormative prism that still permeates equality law. Queer theory’s problematisation of the liberal rights paradigm offers a useful challenge to established norms and to the supposed neutrality of the state when adjudicating between conflicting rights. This thesis represents my contribution to the conversation between liberalism and Queer theory.