One of the most colourful and interesting debates on the Civil Partnership Bill surrounded the claim to the exemption of public servants from the duty to perform civil partnerships, on grounds of freedom of conscience, whether within the meaning of Article 44 of the Constitution or in broader terms. While the issue provoked vivid controversy in our Senate, the claim to exemption from the measure on grounds of religious objection was roundly rejected - most intensely, perhaps, by the Green Minister for the Environment, but also, more surprisingly, by conservative politicians in Fianna Fail and Fine Gael (notwithstanding the bishops’ opposition - does the passing of the Bill represent an historial nadir for clericalism in Ireland?). More interestingly, the claim was roundly rejected by liberals and human rights lawyers - those most likely, in other contexts, to support the reasonable accommodation of religious scruples in the context of public employment. I also agree that the absence of an exemption for registrars does not represent any loss to religious liberty or freedom of conscience, at least insofar as we define these concepts in viable and coherent ways. However, I also believe that the reasons offered for the refusal to exempt are plagued with incoherence and mask a deep confusion surrounding the relationship of freedom of conscience to the general applicability of law. The question I wish to discuss here can be posed as follows: assuming that public servants could be exempted from civil partnerships with no material impact on gay couples entering these, and assuming that we otherwise value the reasonable accommodation of religious scruples in this context, is the refusal to exempt therefore merely the result of moral adjudication as to the value, or moral worth, of the belief in question – rather than the manner of its expression?
Thus, one of the most alarming features of the debate on this issue has been the paucity of reasons offered for its dismissal. The Catholic bishops, amongst others, suggested that the exemption of objecting registrars was constitutionally required. Article 44.2.1 protects freedom of conscience, and the “free practice and profession of religion”, subject only to “public order”. Two government ministers dismissed the constitutional objection outright, with Gormley insisting the non-exemption had been “checked inside and out” , for grounds of constitutional objection. However, the confidence and indignation of their dismissal of the issue belies what is, in fact, the deep ambiguity of the Constitution on this point, with the question of religious freedom and the general applicability of laws having been dealt with in only one case, Quinn’s Supermarket v Att. Gen.  IR 1, whose facts are not easily extrapolated to the issue at hand (the Irish are disappointingly under-litigious in relation to religion). Similarly, Donncha O’Connell of NUI Galway responded to the Bishops’ constitutional point, the Irish Times reported, by stating that this view was “at best tenuous if not tendentious. It is decidedly ill-founded as point of international human rights law”. While O’Connell is certainly correct in relation to human rights law, as readily demonstrated in the not dissimilar scenario considered in Pichon and Sajous v. France, this was not the Bishops’ point, and it is not where the real issue of controversy lies: it is at least arguable that our Constitution offers more generous protection to employees objecting to the performance of duties on religious grounds, particularly in light of the esteem and status it accords to religious commitment. Furthermore, it sets aside the important political-moral dimensions of the claim.
I do not enjoy the scope, in this post, for a full discussion of Quinn’s Supermarket, and its probable application to the issue at hand. It suffices to point out that this, the sole Supreme Court ruling on the scope of Article 44 to protect conscientious objection to generally applicable and “neutral” laws, provides, on its face, an extraordinarily broad definition of the extent of permissible and mandatory exemption of religious communities from the scope of otherwise legitimate legal requirements. In the ruling, which addressed the exemption of Jewish Kosher shops from shop closing hours, Walsh J stated:
“Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion … would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.” [at 11]
For a number of reasons which I do not have sufficient scope to explore, it is not altogether clear from the ruling whether the possibility of retrieving one’s freedom of conscience in the private sphere, by foregoing a benefit such as public employment, relieves the State of the obligation to accommodate religious objections. What is extraordinary, in any case, is the extent to which this precedent has been ignored and the claim to accommodation of religious objection breezily set aside by lawyers and legislators without serious debate of the probable constitutional position.
Setting aside the doctrinal scope of constitutional precedent, a more interesting question is what distinguishes this claim from those that liberals broadly champion, for example, the exemption of public servants from uniform requirements, or the accommodation of their working schedules to meet their prayer requirements, or perhaps their aversion to dealing with alcohol or prohibited foodstuffs. It has been pointed out that the right to religious freedom cannot be exercised so as to undermine the rights of others to receive public benefits without discrimination. This was also pointed out in the recent Ladele case before the UK Employment Appeals Tribunal. This is an obvious and uncontroversial rejection of the claim to deny public services to certain categories of persons on religious grounds and normally, the claim would lose plausibility at that point. However, it is not at all clear that the accommodation of this claim would entail some sort of ‘licence to discriminate’, or that the exercise of the claim would necessarily lead to any material disadvantage, never mind outright discrimination, against gay couples. The claim, presumably, is not to refuse services to gay couples, but to be re-deployed by the State in order to avoid having to decide between compliance with conscience and the performance of duties. Presumably, gay couples would not be denied any service because of the accommodation of the claim, assuming it were administered efficiently, and the number seeking it remained low. If, then, Christian objectors could be accommodated within the public service without any material impact on services – then what is the remaining basis for objection to the accommodation?
I suspect that the true, underlying, almost unconscious basis for this refusal is the moral substance of the religious belief in question, rather than the inherently problematic character of the claim to its expression. Those who (a) support the reasonable accommodation of religious scruples in public employment and (b) accept the hypothesis that the objection could be accommodated without any discrimination or loss to those seeking civil partnerships, may find little other plausible moral basis for their rejection of the claim. Like most, I find the sentiment behind the claim odious and without any moral value. But a part of the point of religious freedom is that we do not adjudicate on the content of religious belief itself, only on the manner of its expression. The “reasonable” of “reasonable accommodation” pertains to the reasonableness of the mode of accommodation, rather than of the religious belief itself. It may be suggested that to accede to the claim has a symbolic import, that the State tacitly approves the religious sentiment by accommodating it. But this non-endorsement rationale is never applied, not could it plausibly be applied to the accommodation of less odious beliefs, particularly where they take the form of the lifting of a burden, rather than the extension of positive support. For example, we do not generally associate the accommodation of headscarf-wearing in public services with any tacit approval of the religious basis of this practice. Where we accommodate religious beliefs in other contexts, that is never taken as expressing approval of the content of the belief itself, not least because we would deny the State any role in the interpretation of the belief.
My purpose in this post is not to condemn this reasoning but to suggest that it might be fruitful to bring it into the open and discuss it on its different, rather radical terms. For example, is the refusal to accommodated the claim on the liberal-left in fact rooted, almost subconsciously, in the teleological hope of radical social transformation, as an instrument with which to gradually erode homophobic prejudice? Is it about “rights” or social transformation – and is this even a useful dichotomy? In either case, the rejection of the homophobic claims of Christian employees severely strains the moral basis of what may loosely be termed the liberal multiculturalist basis for reasonable accommodation. Whatever its merit or otherwise, the ardently inflexible alternative basis offered by republican secularism – that the general applicability of the law is a desirable end in itself, and that religious freedom is “committed to the private sphere” – is less prone to tying itself in intractable conceptual knots on the issue of homophobic civil registrars. Indeed, whatever the admirable motives behind reasonable accommodation, I hazard the argument that there is no loss to religious liberty from the requirement to perform public duties that conflict with religious obligations. The law cannot impose any burden or disability on the basis of our religious affiliation or beliefs, but this does not mean that the requirement to perform public duties contrary to religious beliefs represents a loss to religious liberty, where these requirements have no bearing on religion per se. We cannot extend the concept of religious freedom broadly that it seeks to remove all advantages that result from the performance of religious duty, or accede to claims to have the social and political world arranged so as to harmonise with the requirements of those religions best positions to achieve public status and recognition. We cannot force persons to sell alcohol, but their religious freedom could not compensate them for any lost opportunities they might suffer on this count. The alternative to this hypothesis is necessarily an inchoate concept of religious freedom through recognition, in which the success of claims turns on the hazards of recognition politics.
This provides a more coherent basis on which to reject the bishops’ claim. For reasons I have argued, the only alternative, given certain assumptions, is to adjudicate on the moral worth of the belief itself, with all the difficulties this presents. Digressing slightly, it is interesting that this republican-secularist argument against the exemption of religiously motivated employees from public duties is one that has been taken up with increasing fervency in post-Ryan report Ireland, at times approaching a nascent anticlericalism hitherto unknown to Irish republicanism. However, might this line of thought, with its ardent defence of secular reasons in the public sphere, be appropriated to authoritarian ends in unexpected ways? Since I have insufficient scope to develop these point here, I mean this as the beginning of an argument rather than its conclusion, which I hope others on this site will take up.