Don’t miss the Human Rights in Ireland blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Particularly interesting is Eoin Daly‘s post on the so-called “conscience clause”, which I previously argued should properly be called a “permitted discrimination clause” (for brevity, let’s refer to it as the discrimination clause).
Daly argues that the dismissal of the complaints from individuals like Ronan Mullen was summary in nature and scant on substantive arguments. He says that it is arguable that the Constitution offers more generous protection to employees objecting to the performance of duties on religious grounds than human rights law does.
He makes the following point; crucial to the issue but which leaves quite a conundrum for the law and for society itself.
Like most, I find the sentiment behind the claim [to an exemption on religious grounds] odious and without any moral value. But a part of the point of religious freedom is that we do not adjudicate on the content of religious belief itself, only on the manner of its expression.
How can this be reconciled? Daly suggests there is a more coherent argument against a discrimination clause: one based on the extent to which one’s own right to religious freedom extends, rather than one which looks into the moral content of a belief.
The law cannot impose any burden or disability on the basis of our religious affiliation or beliefs, but this does not mean that the requirement to perform public duties contrary to religious beliefs represents a loss to religious liberty, where these requirements have no bearing on religion per se. We cannot extend the concept of religious freedom broadly that it seeks to remove all advantages that result from the performance of religious duty, or accede to claims to have the social and political world arranged so as to harmonise with the requirements of those religions best positions to achieve public status and recognition. We cannot force persons to sell alcohol, but their religious freedom could not compensate them for any lost opportunities they might suffer on this count.
I had made the point that, in so far as Senator Mullen et al were concerned, the discrimination clause argument was lost when the Equal Status Act 2000 was passed by the Oireachtas. However, the civil partnership debates have shown that the issue has not gone away and, in future debates, Daly’s reasoning is likely to provide a more solid (and less heated) basis on which arguments from objectors could be countered.
A Clatter of the Law 