Kevin Hearty is a former PhD student at the Transitional Justice Institute, Ulster University who has recently taken up a position as a Post-doctoral Research Fellow at the Criminal Justice Centre, University of Warwick. He can be contacted at K.Hearty@warwick.ac.uk.
Across the North of Ireland recently people turned out to protest attempts at attaching a so called ‘conscience clause’ on to equality legislation. The ‘conscience clause’ has its roots in a Private Member’s Bill brought forward by DUP MLA Paul Givan in the aftermath of the Equality Commission taking a case against Ashers bakery in Belfast for their refusal to make a cake with the words ‘support gay marriage’ on it. Defending the bill and outlining the apparent rationale for pursuing it Mr Givan argued that it was premised on protecting ‘religious service providers’ by creating ‘a tolerant society allowing people of faith equality of opportunity to contribute and participate fully in our community’. In the face of allegations that the ‘conscience clause’ could become a way of legislating for discrimination Mr Givan rebuked such an argument by asserting that:
It would not mean that an evangelical grocer could refuse to sell apples to a gay man. Selling apples does not involve someone to endorse, promote or facilitate a same-sex relationship in violation of his or her faith identity so there is no conflict.
It would not mean that a Catholic photographer could refuse to take a photograph of recipes created by a bisexual chef. Taking such photographs again would not have the effect of endorsing, promoting or facilitating a same-sex relationship.
However, it would mean that a Muslim printer would not be required to print a book promoting same-sex relationships in violation of his faith identity. Similarly, it would mean that an evangelical photographer would not be required by law to choose between taking photographs of a civil partnership ceremony in violation of their deeply held beliefs or lose their livelihood.
Although verbose and going to great lengths to defend his position, Mr Givan’s defence above has notable shortcomings. Firstly it appears to have missed the most fundamental point about equality. Equality is essentially an all or nothing concept. There can be no Orwellian style ‘we are equal but’ limitations placed on equality lest the entire concept upon which it is built become redundant. The ‘conscience clause’ seeks to allow for a limitation determined by someone’s – no doubt sincerely held – religious views to be placed on NI equality legislation in a way that would drastically set it apart from anti-discrimination protection currently enshrined in Art 1 of the Universal Declaration of Human Rights, Art 14 of the European Convention and Art 2 of the International Covenant on Civil and Political Rights.
The ‘conscience clause’ also cuts against the grain of Section 75 1 (a) that notes a duty for public authorities to promote equality of opportunity ‘between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation’. According to Mr Givan’s own argument the concept of equality becomes hostage to the religious views of the service provider. Despite outlining some fairly colourful scenarios that the ‘conscience clause’ will purportedly not cover his defence does still not detract from the fact that same sex couples will be legally discriminated against on the basis of religious views subscribed to by a particular service provider. Essentially all his argument is trying to do is to differentiate between acceptable discrimination and unacceptable discrimination – of course tied up in the notion of equality is the belief that no discrimination is acceptable. I wonder if Mr Givan envisages the ‘conscience clause’ affording the same protection to service providers of an atheistic persuasion who refuse to bake any wedding, christening, bar mitzvah, communion or confirmation cake on religious grounds- albeit the grounds of holding no religion.
It is also instructive that Mr Givan’s defence drew on service providers from other faiths in his example. Again this misses the key point. As shown through Givan’s own example, the ‘conscience clause’ will simply allow Muslim fundamentalists or Jewish fundamentalists to discriminate against same sex couples on religious grounds in the same way that Christian fundamentalists can. Allowing more fundamentalists – albeit of a different faith – to legally discriminate due to their own religious views does not make the resultant discrimination any more acceptable. All the defence proffered above has done is show how more service providers can avail of what will be a discriminatory provision rather than showing how the ‘conscience clause’ will not result in obvious discrimination.
This latter point cuts to the heart of the problem in that the ‘conscience clause’ and the rationale for seeking it blurs the line between the separation of state and church(es). Most problematic is the fact that it allows this blurring to take place in the most crucial domain of the law- human rights and equality. Where this has occurred in the past we have seen institutionalised sectarian discrimination by the old Northern Ireland state and the wholesale abuse of children in residential institutions ran by religious orders on behalf of the state right across the island of Ireland. Aren’t we simply walking into a similar state of discrimination this time with same sex couples as the victims? If one were to take Givan’s argument in favour of amending equality legislation on religious grounds and apply it to criminal law or family law some very odd cases materialise. For example would the member support amending laws on illegal substances in order to facilitate Rastafarian drug use on the grounds of their religious views? What about amending family and bigamy laws for those of religions that practice polygamy? And if, according to his own argument, all faiths can similarly avail of the ‘conscience clause’ in order to protect their followers beliefs does this mean that a Muslin fundamentalist service provider can refuse certain services to females on the basis of seeking to adhere to extreme interpretations of Sharia law?
If this is the kind of conscience being sought under this bill I think equality legislation and society are better off without it!