The suggestion of a “conscience clause” opt-out from equality legislation has been floated by no less a person than Lady Hale, Deputy President of Britain’s Supreme Court, and the most senior female judge in the land. The idea is that if treating people equally goes against your conscience then you get to play the “conscience” trump card entitling you to treat people unequally.
Unsurprisingly, some Christians have welcomed the suggestion, which they see as preserving their “religious freedom” against what they see as the encroachment of equality legislation.
“It is obvious that there is a growing conflict between religious freedoms and equalities legislation, and that a new balance has to be struck” opines The Telegraph. So, for example, the Christian hoteliers who famously turned away a same-sex couple, and lost the resulting court case, could in future be indulged by a clause that makes “special provisions or exceptions for particular beliefs”.
In this way some Christians want their religious beliefs to trump the rules that everyone else is expected to obey. The opinions and consciences of the religious are held to matter more than those of other people. You or I might be constrained by the law of the land when providing a public service, but a religious person’s conscience is more important than ours, and thus they get to over-rule the law if they feel strongly about something.
To be fair, Lady Hale said that the same opt-out rules would have to apply to “any beliefs and none”, but how on earth could this clause be made workable? You can bet that Christians would be the first to howl if people were allowed to cite “conscience” as an excuse for discriminating against Christians, so they are presumably hoping for a clause that can only be used in their favour.
Do we really want courts ruling on what is and is not part of someone’s conscience? How strongly held does a belief have to be to qualify? Would we have judges asking: “How strongly to you feel this?”, and after the reply: “A lot”, saying: “Ok then, that counts”? Would we take piety displays such as special clothing or facial hair as a sign of sincerity, which then privileges those religions that demand them?
The proper path is clear: equality laws need to apply to everyone equally, religious or not, conscience or not. If we think that a rule would be too burdensome if applied to all, then we should not impose the rule at all. There is an entirely valid debate about which rules to make, but equality under the law requires the same for everyone.
The flaw in The Telegraph’s reasoning is the idea that “religious freedom” is an extra that confers bonus rights upon the religious, rights that the rest of us do not have. That is wrong: religious freedom is part of a general right to freedom of thought and speech, but is not an opt-out from rules that apply to society as a whole for entirely valid secular reasons.
Thus there is no “conflict between religious freedoms and equalities legislation”. There is indeed a conflict between equalities legislation and an individual’s freedom to indulge their preferences, and society should indeed debate the proper scope of such legislation; but framing it as a religious issue — as though individual preference only matters to the religious — is misguided. The truth is that Christians in the UK are used to special treatment and automatic privilege, and are resentful that nowadays they are expected to be no more than equal members of an equal society.