Should the Civil Partnership Bill 2009 contain a ‘conscience clause’?

In the continued second stage debate on the Civil Partnership Bill 2009 which took place in Dáil Éireann yesterday the matter of so-called ‘conscience clauses’ arose with a number of Deputies suggesting that the Bill ought to include such a clause to allow people whose ‘conscience’ indicated that homosexuality or civil partnerships were a moral wrong to refuse to engage in the creation of such civil partnerships. This proposal, which did not gain purchase in the Dáil to any great extent, brings a number of questions to my mind that I want to briefly address here. In the main the debate concentrated on the public servants and registrars, but previously noises were made about private service and goods providers as well (marvellously covered by Suzy Byrne here and here) so I will briefly address that matter below.

Should ‘conscience clauses’ exist within equality legislation?

The first question is one of principle. If a piece of legislation is introduced with the purpose of trying to create formal legal equality or in some way to reduce inequalities (and I think the Civil Partnership Bill can be firmly placed in that latter category) then ought such legislation contain any ‘get out’ clauses of this nature? One’s conscience, surely, is a private matter. Directing that registrars may not refuse to conduct a civil partnership ceremony on the basis of their own beliefs does not direct that those beliefs may no longer be held; it simply precludes someone from using those beliefs as a reason to refuse to carry out a state function. The registrar, as a private citizen, may hold and profess whatever moral positions s/he wishes but as a public servant s/he is required to carry out public functions. This separation of the private individual and the professional is a normal requirement of professional life; there seems to me to be no basis for changing that in the context of this Bill. If the Oireachtas has, through legislation, decided to take equalising/decreasing-inequality measures then it seems nonsensical for such a clause to be included as, through such clauses, agents of the state would be enabled to act in a manner squarely in contrast with the policy and legislative objectives of the State. At the very least this sends unwelcome mixed messages from the State to those affected. It also does nothing to minimise the likelihood that same-sex couples would come into contact with behaviours of the state that are perceived as being homophobic. It therefore has the capacity both to undermine the State’s objectives and to give rise to feelings of humiliation and grievance in gay and bisexual people’s interactions with the State.  

Where is the dividing line between conscience and homophobia?

A practical issue also arises when one comes to consider how a legislative provision dealing with a conscience clause would be phrased. There is, I think, a difference between a ‘religious ethos’ clause, such as the one found in s37 of the Employment Equality Act 1998, and a conscience clause. A religious order or organised religion has clearly defined—although admittedly sometimes internally contested—ethos, rules, laws, doctrines etc… These are relatively easily identified. If the Roman Catholic Church declares a position on homosexuality there is little question that it is an official matter of ethos, after all the Church’s position on homosexuality is long standing and often reiterated by the Pope and other Church leaders. A matter of personal conscience is different. How are we, in law, to distinguish between a genuinely held personal belief of the moral wrongness of homosexuality and civil partnership and homophobia? The two are not the same, of course. One is a position borne of a moral code and the other a position borne of hatred, but try wording that in clear legislative language the challenge ought to become clear. What if a registrar claims ‘I am a Catholic and as a Catholic I believe this to be wrong, therefore I refuse to act against my conscience’? What does it mean to be a Catholic? Does it simply requirement baptism, or is some kind of further and current lived practice of the faith and its sacraments required? How can we legislate for this? Furthermore, how in a legal dispute can we expect a court to determine the extent to which someone has a position of conscience based on a religious faith? In drafting terms, such a provision would, to my mind, be nightmarish in its complexity.

How would such a conscience clause sit with pre-existing equality legislation?

If we consider the possibility of placing a conscience clause in the legislation for service providers, then a clear question of compatibility with pre-existing equality legislation arises. The Equal Status Act 2000 prohibits refusal by a goods or service provider to transact with someone on the basis of sexual orientation. Thus, ordinarily, if a gay couple walks into a flower shop to buy some flowers the florist may not refuse to transact with them on the basis of their sexual orientation whether their conscience tells them homosexuality is wrong or not. Equally, a hotel may not refuse to rent a function room out to a lesbian on the basis of her sexual orientation. Why, then, would we even contemplate changing those rules in the context of civil partnerships? If it is unlawful to refuse to sell Sally flowers because she is a lesbian, what does the function to which those flowers are to be put (e.g. decorative for a dinner party v. decorative for a civil partnership) have to do with it? The application of a conscience clause in the Civil Partnership Bill to private actors would, in my opinion, be utterly inconsistent with the current position and could not be reasonably countenanced.

As I said at the start, the ‘conscience clause’ idea did not gain much ground in the Dáil yesterday and I am very hopeful that it will be treated with similar levels of dismissal in further stages not only as a matter of practicality but also—and much more fundamentally—as a matter of principle.

Image: Conscience by Joseph Eagle