The legalization of gay marriage is troubling for many and the extension of anti-discrimination norms to cover sexual orientation may force many into painful dilemmas as to how they reconcile their deeply held and sincere beliefs with the duty not to discriminate. Such dilemmas are nothing new. They have lain at the core of anti-discrimination law since its inception: how to reconcile respect for the right to believe what one wants and to follow one’s beliefs, with the damage that acts of discrimination can cause?
Free conscience deserves to be treated seriously. It is not beyond doubt that, once provision of a good or service to individuals is assured, the damage to dignity inherent in acts of discrimination is sufficient to warrant overriding individual conscience. But if we are to take conscience seriously then we protect the right to conscience not the right to particular, relatively popular forms of conscience.
It is important for both sides to acknowledge the difficult consequences of the positions they espouse. Those who come down on the side of anti-discrimination have to swallow hard and say “My position means that a sincere individual will have to choose between their job and their beliefs, even where accommodating those beliefs would not result in the deprivation of service”. Those on the side of conscience must swallow hard and say “If it is conscience that we are respecting, it cannot only be popular and palatable conscience and my position means that we must accommodate the racist and the bigot too”.
Ms Ladele’s claim was based on both religious freedom, and that the failure to exempt her from the anti-discrimination policy was itself discriminatory. In the end however, the decision came down to the familiar clash between the right to follow one’s beliefs and the need to prevent discrimination. Since anti-discrimination laws were first introduced, the debate has always been about the balancing of individual freedom with freedom from discrimination. The only difference now is that the inclusion of sexual orientation as a protected category means that this paradigm is being applied to beliefs that a significant numbers of Christians hold. Change has been rapid in this area and conservative views on sexuality have moved rapidly from majority to minority position. However, that cannot change the fact that this group is simply being required to put up with restrictions on their conscience that have been applied to everyone for quite some time.
Ms Ladele’s lawyers argued that a balance had to be struck. They accepted that it was necessary to ensure that gay couples were able to access registration facilities but said that, once they could do so, to require all registrars not to discriminate so as to prevent the harm to human dignity inherent in acts of discrimination, was disproportionate. This is where they failed to take conscience seriously. One can make the argument that dignity is not sufficiently important to outweigh conscience and that therefore discriminatory acts should not be prevented once the relevant service is provided. But that requires accepting the consequences of one’s position. Ms Ladele’s lawyers argued that her employer was not required to facilitate a racist registrar because such beliefs are not worthy of respect in a democratic society.
However, the nature of the belief is not really relevant. What was curtailed in Ms Ladele’s case was the action of refusing to provide a service on a discriminatory ground. Beliefs were not being regulated. Either the undermining of dignity inherent in discriminatory acts is sufficient to restrict conscience or it is not. If the dignity of racial minorities is important why is the dignity of sexual minorities less important? One does not treat conscience seriously by granting conscience exemptions in relation to relatively popular beliefs but not in relation to unpopular beliefs.
Anti-discrimination law and protection of freedom of conscience delineates the scope that we all have to hold beliefs and live according to them, and the kind of protection from discrimination that we can all expect. It does no more. It does not involve a declaration that the discriminator is an evil person, just that they, like everyone, are not entitled to refuse services on particular grounds. Similarly, the boundaries that apply to the conscience of all, are also applicable to religious individuals and institutions. We all have consciences which should all be treated with equal concern and respect by the State. The essence of free conscience is that it is the conscience itself rather than the content of our beliefs that is protected.
Dr Ronan McCrea is a Senior Lecturer in Law at UCL. This post draws on a presentation given to the Labour Law Discussion Group, University of Oxford on 18 November 2013.