Freedom of religion and same-sex equality are not inherently incompatible. But sometimes they do seem to be on a collision course. This happens, for instance, when religiously devout marriage officers refuse to marry same-sex couples. In the wake of legal recognition of same-sex marriage around the world, states have grappled with civil servants who cannot reconcile their legal duties with their religious beliefs.
Some states have responded by giving priority to same-sex equality. In the United Kingdom, for instance, the courts ruled that same-sex equality outweighed the religious beliefs of a registrar who refused to register same-sex partnerships, which she considered ʻcontrary to God’s lawʼ. And in the Netherlands, the legislature recently passed a law to ban municipalities from hiring civil servants who refuse to abide by equality legislation.
But not all countries favour same-sex equality. South Africa, for instance, has inserted an exception in its same-sex marriage legislation, granting marriage officers the right to refuse to solemnize same-sex unions. Four out of every ten marriage officers in South Africa are now exempt from their legal duties, in recognition of their religious objections to same-sex marriage.
Other states are still grappling with the question or are likely to face it in the future. In the United States, for instance, a Kentucky clerk was briefly jailed after she refused to marry same-sex couples. The heart of her case, however, is still being considered by the courts. For now, it is an open question whether same-sex equality or religious freedom will prevail in the United States. In Australia, finally, the population is being asked to vote on the introduction of same-sex marriage. If the yes camp wins and same-sex couples gain a legal right to marry, Australia may well need to decide next whether registrars with conservative religious beliefs can refuse to register same-sex marriages.
The question raised in the title, then, does not have a straightforward answer. But we could also rephrase it in normative terms: should we allow marriage officers to refuse to marry same-sex couples? The answer to this new question depends on how we approach human rights clashes.
Different human rights surely seem to collide in the same-sex marriage case. But we could wonder if the conflict is inevitable. We could try to escape it in two ways. We could first argue that marriage officers are under a general duty to obey the law, without exception. On this argument, civil servants are free to abide by their religious beliefs in their private lives, but not to follow them in their public function. In the public realm, we could insist, there is no room for religious exercise by registrars. And thus their freedom of religion cannot clash with same-sex equality.
But we could also favour the opposite solution. We could argue that religious beliefs do not end where the public sphere begins. Instead, we could insist that same-sex couples are not affected by a marriage officerʼs religious beliefs, because they only have a right to receive a public service and no right to delivery of that service by a particular registrar. As long as another civil servant registers their same-sex marriage, we could submit, the equality rights of same-sex couples suffer no harm at all. On this account as well, there is no conflict.
But is it really desirable to circumvent human rights clashes at all costs? Should we not accept that human rights do collide, at least in some circumstances? If we accept that real conflicts exist, we can still pursue compromise solutions. We can acknowledge that human rights trade-offs are sometimes inevitable, but insist that one right should not be sacrificed to the other. In the same-sex marriage case, we could favour a pragmatic compromise solution. We could envision an administrative system under which couples who wish to register their marriage are received at a ʻdispatchʼ desk. There, same-sex couples could be directed to willing registrar and away from those who object to same-sex marriages.
Whether such a pragmatic system can still function when a large segment of all marriage officers objects, as in South Africa, is doubtful. But we might also dismiss the compromise solution for principled reasons. We could favour a principled solution on which one of the human rights in conflict is overriding, so that it trumps the other. We could balance both rights and find that same-sex equality ʻweighsʼ more. Or that freedom of religion ought to prevail. We could even decide that the balance should categorically tilt in favour one of the human rights, regardless of the circumstances. Or we could pursue a more contextual approach, on which the balance is fine-tuned in every instance. In the same-sex marriage case, however, the contextual approach appears impractical. Meaningful variations across individual cases seem unlikely. We are probably better off deciding once and for all that same-sex equality trumps freedom of religion; or vice versa.
But in other scenarios the choice between a categorical and contextual approach may remain open. For example, when a church dismisses an employee for violating religious doctrine, for instance by having an extramarital affair, two avenues are available. We could follow the US Supreme Court and insist that courts should not second-guess church decisions, even if these infringe the rights of church employees. ʻThe First Amendment has struck the balance for usʼ, the Supreme Court has famously held. But we need not agree with the American court. We may instead want to follow the lead of the European Court of Human Rights. Rather than resort to categorical answers, the European Court has ruled that the balance should be struck anew in every case. Sometimes the church will prevail. Other times, its employees will win.
Ultimately, then, human rights conflicts belie easy answers. Myriad competing approaches are available and there is ample room for reasonable disagreement. Therein may well lie the beauty of arguing about human rights clashes: contrasting opinions are often equally defensible.
Featured image credit: “SCOTUS Marriage Equality” by tedeytan. CC BY-SA 2.0 via Wikimedia Commons.