Balancing Freedom of Conscience and the Right to Non-Discrimination on the Ground of Sexual Orientation: Beyond Ongoing Culture Wars
- Arts 201
- Arts and Law, Research
Postgraduate students and academic staff are welcome to attend.
The paper will consider the ongoing conflict between commercial service-providers (e.g. bakers, florists, photographers, printers, etc.) who seek to invoke the right of freedom of conscience to gain exemptions from the duty not to discriminate on the ground of sexual orientation. The main argument of the paper is that conscientious exemptions should, in general, not be granted to these providers of commercial services because doing so would cause unjustifiable dignitary harms to members of the lesbian, gay and bisexual (‘LGB’) community. This may lead to the charge that the right to non-discriminatory treatment is prioritised over the right to conscientious exemption and that those that oppose homosexuality are now being made social outcasts by the law. This charge is rejected. This is because the social standing of those that oppose homosexuality is protected under several principles of liberal law. They may not be discriminated against on the basis of their beliefs by private or public bodies; they can associate in institutions whose constitutive belief is that homosexuality is sinful or immoral and which exclude those in the LGB community; opposition to homosexuality is also guaranteed under freedom of expression, although it is necessary to catalogue which principles of that freedom are legitimate avenues to propagate anti-LGB views. It follows that while the right to sexual orientation non-discrimination should be given priority in the context of commercial services generally available to the public, the freedom of conscience justly takes a back seat in other contexts.