So, here’s a complex and controversial set of issues:
Presenting recently for the American news channel MSNBC, Johnathan Capehart described a recent decision by Republican appointed Justices in the Supreme Court of America that found in favour of a web-site designer who had refused a commission from a same-sex couple. The Court decided that forcing acceptance of such a commission ‘would violate (the designer’s) First Amendment Rights’ because she would be required to draft a wedding programme which would contain commentary that conflicted with her religious beliefs.
Following the ‘six in favour / three against’ ruling, one of the dissenting judges, Justice Sonia Sotomayor, issued the following statement:
‘Today is a sad day in the American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history.
By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second class status.’
You can read an account of the case on https://abcnews.go.com/US/wireStory/supreme-court-rules-designer-make-wedding-websites-gay-100539807 where the ruling is reported to have found in favour of one Lorie Smith, affirming that she can refuse to design websites for same-sex weddings despite a Colorado law that bars discrimination based on sexual orientation, race, gender, and other characteristics.
The report goes on to suggest that artists, photographers, videographers, and writers are among those who can equally refuse to offer what the Court called ‘expressive services’ if doing so would run contrary to their beliefs.
In contrast to her opinion, and in support of the ruling, Sotomayor’s fellow Supreme Court Justice Neil Gorsuch wrote that the First Amendment ‘envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands’ adding that the Court has long held that ‘the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.’
Whilst the instincts of most of the readers of this column will likely be much in sympathy with the views of Justice Sonia Sotomayor, some may consider that the Gorsuch view that a ‘ruling against Smith would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty’ to be a matter of concern.
For example, such an instance could involve a gay website designer being forced to design websites for an organization that advocates against same-sex marriage. Such advocacy, however distasteful to, no doubt, most of our population is, after all, legal both in the USA and the UK. On that basis it would seem logical that the denial of web-site services would, as in the case of Lorie Smith, also be illegal. Would that be acceptable to all those who would have Lorie Smith prosecuted?
Gorsuch expressed further concerns in this respect as follows: ‘Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.’
Which brings me to reflect on architects and their rights, or otherwise, to refuse commissions on the grounds of personal belief. For example, I remember many years ago a well-respected London firm being pilloried in the Architects’ Journal because its design for a prison in the Middle East contained a gallows. This begs the question as to whether members of its design team should have been entitled to refuse to participate in such a project on ethical or religious grounds without fear of putting their jobs at risk?
Likewise, should a Muslim architect in the UK be entitled to refuse a commission to design an extension to a Christian Church on religious grounds? Or should an atheist be entitled to refuse a commission to design a chapel on purely non-religious grounds? Similarly, should an anti-abortionist architect be entitled to refuse a commission to design an abortion clinic, or a pro-abortion architect a headquarter fit-out for an anti-abortion pressure group? Perhaps even more controversial, should an architect be free to refuse a commission to design a surgery for ‘non-medically required’ circumcision of male children, a practice which is common within both Jewish and Muslim communities, and lawful in the UK if there is consent from both parents?
Our world is becoming daily more complex in these matters, and many issues are being tested in open forum when in earlier times commissions that were not palatable to a particular architect might, perhaps, have been politely declined on the basis that the firm was simply ‘too busy’. But in these times of ever greater transparency, and dare I suggest it, ever greater intolerance, such conflicts are becoming more common and very much more public. Indeed, it is no stretch of the imagination to contemplate an architect being faced with the same conundrum as that which led Michael Black and John Morgan, back in March 2010, to bring a civil case against Susanne Wilkinson who, you may recall, refused on religious grounds to provide accommodation at her home, from which she offered bed and breakfast services, despite having accepted a reservation and received a deposit. She lost.
Of course, some may argue that whilst refusing to grant a night’s accommodation to a gay couple in a guest house, however small, can be readily likened to the reprehensible conduct of a publican refusing to serve a person of colour in a bar, it is quite different to accepting (or rejecting) an invitation to provide service as an architect – or as any other type of designer (for example: a web designer…). Others would surely disagree…
Wisdom might of course suggest that a gay couple would anyway be better not to employ an architect who, on religious or moral grounds, felt unable to design their house, but if legal precedent is to be consistently applied, then in line with the Black/Morgan v Wilkinson case, refusing such a commission for such reasons would surely be deemed illegal. But is it right that an architect in this position should be deemed guilty of a criminal act? Most would surely find such a reason for refusal both bizarre and unacceptable, but amongst them there will be those who see little sense in forcing an architect to undertake such work against penalty of prosecution. After all punishment, whether by way of fine or imprisonment, is unlikely to change the mindset of the offender, which is where the problem lies.
Against those conundrums remember that the Marriage (Same Sex Couples) Act of 2013 specifically excludes marriages within the Church of England which is allowed to continue to apply the biblical definition of marriage as set out in Canon Law as being ‘in its nature a union permanent and lifelong, for better or for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side….Likewise, mosques and synagogues, and indeed any other ‘religious place(s)’ are so protected from any obligation to conduct same sex marriages on their premises.
Then there is the common practice of refusing women free movement. I well remember attending Zaha’s funeral at the Regent’s Park Mosque, and hearing the loud and vain protestations of some of the architectural profession’s most eminent women as they were refused access to the ‘musallah’ (principal hall). Protest they might but to no avail: their entry was firmly denied as rightly, or wrongly, their menfolk (bar the occasional mild protest) acquiesced to the rigid segregation of sexes that Frederick Gibberd’s plan had anticipated. (Yes, he, the same protestant architect that gifted Liverpool its Roman Catholic Cathedral!)
Arguments around these sorts of issues will surely continue to escalate, both in their frequency and intensity, but it seems to me that there is a hidden danger in all this that those who insist quite rightly on promoting freedom may, in securing it, unwittingly be establishing what many might consider to be unfair restrictions on the liberty of others.
Some may advocate common sense and tolerance as we go forward but, either way, we can surely expect increasing tensions and plenty of highly controversial rulings as the Courts are forced to engage in such matters.