God is an arms dealer

My hopefully provocative question: since those who tend to oppose this legislation tend to draw a disanalogy with laws banning incitement to racial hatred by pointing to a distinction between what is chosen and what is unchosen, with race not being chosen and religion being chosen, does it matter whether sexual identity is chosen when considering laws against discrimination or incitement of hatred towards particular sexual identities?

Robert suggests an interesting way in to the 'religious hatred' question. But first, let's talk about hurting people. Before I'm a libertarian, even before I'm a Marxist, I'm a humanist, at least in the sense that I believe that human beings - all human beings - are more worthy of preserving from harm than anything else. Of course, this isn't an absolute rule; the test-case scenarios are legion (the death of one person vs. the loss of an entire species? what about an entire genus? what about the loss of an entire genus vs. the death of the last surviving member of a tribe?). Let's just say that the prevention of harm to people is value #1 and work from there. It does at least differentiate my position from that of the Texas sheriff I once saw on TV; his words were, "I've seen plenty of people that deserved shooting, but I've never seen a wallet that deserved to be stolen." I'm not planning to go to Texas. Personally, I've seen plenty of wealth that deserved to be redistributed (did I mention that I went to Cambridge?), but I've never seen anyone who, in my eyes, deserved to be shot.

What Robert's post suggested to me was that the question of religious hatred is part of a broader set of trade-offs, between harm done to other people and our own sense of identity: not the (few) unchangeable facts of identity that we're born with, but our personal frameworks of habit, compulsion, self-fulfilment - the things you do to feel OK, to feel like you're you. If you get off on wearing an SS uniform in bed, it's no business but yours and your partner's. If you write long articles about the joys of wearing Nazi regalia in bed, I may feel that you've got the right to express your sexual identity, or I may feel that publicising this particular sexual identity is a bad idea. And if you tell me that what gets you through the night is driving around Jewish neighbourhoods in an open-topped car wearing a leather overcoat and a death's head cap, I'm likely to tell you to stop it - the distress you're causing to other people will matter more to me than your ability to get your kicks. This isn't a public/private question (assuming for the moment that that distinction is meaningful); the question of harm can have the same gradations in an entirely 'private' context. Someone who gets off on inflicting pain, for example, may be fearlessly exploring the outer limits of sensuality; they may be a boring and creepy bully (who, nevertheless, has every right to be boring, creepy and domineering in bed, as long as they can find a willing partner); or they may be actively dangerous and in need of therapy and/or locking up. The distinguishing factor is whether they're doing any harm to other people. We may not choose the framework through which we see the world, or how we'd like to act, but we can choose what we do with that framework and how we do act. The choice whether or not to cause harm to another person, above all, is always ours.

Having said that, it's not always obvious whether or not what we are into is harmful. In both the S/M-based scenarios I've given, there's one extreme where harm done clearly takes precedence and another extreme where it's equally clear that nobody is being harmed. Then there's an area in the middle where (to paraphrase Altered States) the right answer is that there is no right answer. Your critique of leather queen A may be equally applicable to his friends B to Z; it may be a valid but extreme response to diffuse trends in the leather-queen community; or you may just have happened to pick a leather queen who is also a twisted bastard. You aren't going to know until you talk it through, without either assuming that a particular course of conduct is harmful nor ruling out the possibility. The point is to have the conversation - and, more broadly, to maintain the conditions in which that conversation can happen.

But there's a complication. So far I've assumed that 'critique' and 'harm' are not only distinguishable but entirely different things: 'harm' is all about actions and bodies, 'critique' is about thoughts and brains. But brains do more than think, and bodies do more than act: between these two (more or less imaginary) extremes is the muddy terrain where people actually feel stuff. In particular, where they feel hatred - where they desire to harm (or at least severely demoralise) certain other people, or groups of people. Which is a problem. There may be some individuals who it's entirely appropriate to loathe and despise, but it's rarely appropriate to view an entire social group with unalloyed, non-negotiable hatred. But, of course, prejudice of this kind does exist; feeling prejudice seems to come fairly naturally to most of us, followed closely by finding justifications for prejudice. And, where justifying prejudice is concerned, there's no absolute distinction between a mindset based on a set of reasoned arguments and one built on unquestioned beliefs and habits: either one can be used to express and justify hatred. What's worse, both can be used to portray the hated enemy in ways which will evoke hatred among other people - even people who don't subscribe to those beliefs or arguments.

This, it seems to me, is very much the area in which the proposed new law on incitement to religious hatred is working. Whatever criticisms we might have of particular religious beliefs (advocates of the new law argue) we should recognise that there is such a thing as prejudice against a group defined by its religion, and that this is no more defensible than racial prejudice. Fears that the new law will have a chilling effect on criticism of religion are misplaced, we're told; the law will only kick in at the point where critique stops and hate begins. We don't condone racial hatred, and few people now object to the criminalisation of incitement to racial hatred (which dates from 1976); why should religious hatred be treated differently?

There are two problems with this argument. Firstly, as we have seen, the idea that hatred can be cleanly divided from critique is illusory. If I believe that a defined group of people regularly do something to which I strongly object, I'm not going to feel kindly towards that group. The question is whether this is hatred arising from a reasonable belief, or a prejudiced belief arising from hatred. In the case of racial prejudice, it's generally not a tough call, for the simple reason that 'race' doesn't govern behaviour. Where religion is concerned, the question is more difficult. Anyone who hates Muslim men on the grounds that they all require their wives to cover their faces is clearly prejudiced ('Islamophobic', even). But if I said I hated those Muslim men who do require their wives to cover their faces (basing this policy on their reading of Surah 24:31), would I be expressing illegitimate prejudice against Muslims or a valid critique of sexism? It's arguable both ways; I think it's a conversation that should be held, and held out of the shadow of the criminal law.

Instead of opening up the question of what can and can't be said about religious and cultural practices, the proposed law would shut it down, giving legal definition to the cut-off point where criticism (legal) becomes hatred (illegal). Since that borderline is essentially imaginary, in practice the law would be liable to bite off either too much (chilling legitimate debate) or too little (leaving genuine incitement to hatred unpunished). The former outcome seems much more likely than the latter. It can be argued that the 1976 legislation has itself had a chilling effect on discussion of race: the legislation only criminalises 'threatening, abusive or insulting' statements which are also likely to stir up racial hatred, but it has tended to make it difficult to make any general statement about 'race'. On balance, this is probably no great loss. By contrast, the new law attacks an area where debate is widely seen to be both legitimate and useful; what's worse, it doesn't include that saving stipulation that the language used should be 'threatening, abusive or insulting'. If somebody says that what you've said or written is liable to stir up religious hatred, the law says they've got a valid complaint, more or less by definition. (But (we're told) we needn't worry, as the Director of Public Prosecutions won't bring prosecutions most of the time. We're being asked to give the state new powers which could be abused, in other words, and trust that they won't abuse them. Why don't they just drop the big one and pass an Enabling Act?)

There's another problem. Saying that rational arguments can support prejudice doesn't mean that unquestioned convictions can't: religious beliefs may themselves articulate and buttress hatred. The way I feel about the 'conservative' Muslim husband who insists on his wife covering her face is very much the way that I feel about the sadist who insists on spanking his partner with a table-tennis bat. Both are constraining someone else's behaviour; both are doing something which seems unarguably right to them; both are reproducing broader patterns of gender-based subordination, in the form of a culturally-specific practice. And, crucially, in both cases this practice may articulate and support a personal hatred of women, or it may sit alongside feelings of genuine respect. It would be absurd - and grossly insulting - to assume that full-face veiling invariably reflects personal feelings of misogyny. But it would be equally absurd to ignore the degree of 'fit' between the injunction for women to be veiled and broader misogynistic social structures, and to assume that contemporary veiling is never associated with misogyny. The conversation needs to take place, out of the shadow of the criminal law.

Instead, the proposed law would tend to protect prejudice, as long as it was expressed in the language of religion. There are Christian ministers - to look no further afield - who express themselves in the most vitriolic terms on the subject of gays, or Jews, or members of other Christian denominations. Anyone denouncing this kind of purportedly religious hate-mongering would need to tread carefully: using the wrong kind of language about the minister and his flock could itself be classed as incitement to religious hatred. (We're assured that this wouldn't happen, of course, but that's almost beside the point. We could expect to see prosecutions - or rather, we would expect to see prosecutions, and most of us would moderate our language accordingly. Is it getting chilly in here?)

Prejudice exists; hatred against any number of groups exists, religious groups included. (To bring sex in one last time, prejudice is a bit like pornography: if you can identify a group, you can be sure that somebody somewhere is prejudiced against it.) Prejudice against religious groups is a genuine problem; the rationalist argument that all beliefs should be equally open to criticism is valid but irrelevant, given that rational arguments can buttress and articulate prejudice just as well as unexamined systems of belief. Unfortunately, the proposed law attacks only one half of this pairing, giving its blessing to the other - and, for anyone who believes in rational debate, the law has picked the wrong side to protect.

But it'll help Labour get back some of the votes they lost over Iraq, and I guess that's the main thing. Make Secularism History!