Each time an Irish government proposes to introduce new rights for gay citizens opponents call for the right of service providers to discriminate against those citizens. They call this a “conscience clause”, which is surely a misnomer but sounds better than a “permissible discrimination” exemption.
Strangely, this is an argument which it appears must be had repeatedly. I wrote about it at the time of the Civil Partnership Bill and that post applies equally to the marriage referendum. In short: the Equal Status Act prohibits discrimination against people on the basis of sexual orientation. It was introduced fifteen years ago and it does not include a “conscience clause” (there is a limited “ethos” exemption for schools run by religious organisations). A “conscience clause” was not permitted in the Equal Status Act or the Civil Partnership Act. Why should marriage be any different?
The religious beliefs of citizens also benefit from protections and the State should not offend against those rights. But the State is entitled to insist that businesses providing services to the public respect its equality laws. The difficulty with providing an exemption from equality legislation on the basis of religious beliefs is that it would allow the law of the State, applicable to all, to be subverted by the private beliefs and opinions of self-defining groups. Indeed, if a “conscience clause” were introduced, there is no reason why it shouldn’t protect political beliefs as well as religious beliefs.
Today William Binchy is concerned that gay couples might sue a church for refusing to perform a same sex religious marriage ceremony. This is a strange concern to have. I have yet to hear of divorced people suing churches for refusing to perform a marriage, for example, but the same principles apply. Even if Mr Binchy’s fear was realised, it would mean that civil marriages would have to be registered separately from religious ceremonies. This would not require churches to perform same sex marriages.
It is striking that calls for a “conscience clause” only seem to arise in the case of gay rights. One does not hear the Iona Institute and other groups opposing the marriage referendum advocating on behalf of bakers and stationers forced to provide services to single mothers, divorcees or atheists. If one were to introduce a “conscience clause” it would have to apply to all categories of persons who benefit from protection under the Equal Status Acts and would open the gates to a wide and unpredictable range of subjectively permissible discrimination that would entirely undermine the purpose of equality legislation. Any conscience clause limited to gay rights would, in itself, constitute discrimination.