There
is a rising legal challenge that will soon reach the courts in many western
countries, if it has not already.
CNSMonitor.com
summed it up nicely: “As more and more same-sex couples across the country
legally celebrate their nuptials with traditional public pomp and ceremony, the
cherished right of freedom of religion has run headlong into the principle of
non-discrimination in the public sphere. As a result, a vexing national debate has
begun to rage over the extent and legal limits of each side’s visions for the
nation’s common life together.”
The ultimate
question when this debate reaches its crescendo is going to be “Which right
should trump which and when?”
When
these cases begin to hit the courts, the courts are going to have to
distinguish between two questions. These questions are often blurred by the
liberal media (perhaps intentionally so) and this has in the past created a
public outcry where the public has drawn its conclusions without being clear on
what the questions are.
The two questions the courts are more than likely
going to have to decide on in the future are as follows:
QUESTION 1:
Should a business be entitled to deny services to
a group of people referred to in section 9 of the Constitution based solely on
the fact that the people being denied service belong to that particular group -
and use the right to freedom of religion as their justification?
QUESTION 2:
Should a business be compelled by the State to be
a party to (or help facilitate) an event (or an action) that goes against the
religious convictions and the right to freedom of conscience of the business
owners?
When
looking at any case, the courts are going to have to first work out on the
facts whether they are considering Question 1 or Question 2, before they
consider the outcome.
In
order to work out which question they are looking at, they’re going to have to
ask:
1)
Is the business owner denying the supply of goods/services solely in relation
to an event or action?
2)
Would / Does the business owner serve members of the group in question during
the ordinary course of business if their request was not in relation to that
particular event or action?
3)
Does the event or action, which the business owner would have to be complicit
in by supplying the means, go against the religion or conscience of the
business owner in question.
If the
answer is "Yes" to all of those questions, then the courts will be
considering Question 2. If the answer to all of those questions is
"No", then the courts will be considering Question 1.
In other words,
the courts are going to have to first determine if the business is saying no
because of the PERSON or because of the EVENT or ACTION being catered for.
The
definition of an “accomplice” is a person who knowingly helps another person
commit a wrongdoing. The law recognises
that by helping someone commit a wrongdoing, you should also be held guilty
even though you did not commit that wrongdoing yourself. Therefore, it is not a
stretch of the imagination to acknowledge that many people believe that by
helping or facilitating someone in their committing of what that person
believes to be a sin, they are an accomplice to the committing of that sin and
thereby sinning themselves.
The
courts are going to have to decide whether there should be space in the law to
allow people the freedom of conscience not to be a facilitator (or complicit) in
an event or action which they deem to be wrong.
Here are a few
examples of where the court will be dealing with Question 1:
1) Should the local grocer be allowed to say “We
will sell our goods to anyone, but not black people?”
2) Should a restaurant be allowed to say “We will
serve anyone, but not gay people?”
3) Should a florist be entitled to say “I don’t
serve men. Only women.”
Here are a few
examples of where the court will be dealing with Question 2:
1) Dog fights – “We would like to rent your venue
for our annual dog fight competition where approximately 6 dogs are torn limb
from limb every year” – should the venue owner be entitled to say “No, I know
that dog fights are legal but in my opinion, they are morally wrong and
therefore I do not want my venue to host that?”
2) KKK meeting – “We would like to hire your venue
for our annual KKK meeting” - Should the venue owner be entitled to say “No, I
know that you have the right to freedom of association and that your meeting is
not illegal but I believe that what you stand for is morally wrong and
therefore do not want my venue to host that?”
3) Celebration of Abortion cake: “We are having a
party celebrating Roe vs Wade, the court case which made abortion legal, and we
would like you to please make a cake with the words ‘Celebrating the right to
abort.” To many, the killing of the unborn is tantamount to murdering a baby
and therefore being forced to be a part of celebrating it would be
unconscionable to them - Should the business owner be entitled to say “No, I
know that you have the right to celebrate anything you like but I am against
abortion and therefore cannot in good conscience supply a cake with that
message written on it.”
4) A gay florist: “We are having an
anti-gay-marriage gala and would like you to please supply the flowers.” Should
the gay florist be entitled to say “No, I know that you have the right to
freedom of expression but I am pro-gay-marriage and therefore cannot in good
conscience supply the flowers for your event.”
Do you
see that the difference between Question 1 and Question 2 is that Question 1 is
based on the person being part of a particular group referred to in section 9
of the Constitution, and is not related to any event.
Question
2 is not about the person at all, but about the event or action.
Question 1 invokes
(amongst other things) the application of section 9* of the Bill of Rights, but
Question 2 invokes section 15.1* of the Bill of Rights (the right to freedom of
religion and conscience) as the action is based solely on the business’s
participation in a particular event or action.
If freedom
of conscience is not the right to say “I do not want to take part in (or be complicit
in) an event or action that I believe to be wrong” then what is left for the
right to freedom of conscience?
Conscience
is defined as “a person's moral sense of right and wrong, viewed as acting as a
guide to one's behaviour.” Therefore by extension the right to freedom of
conscience is the freedom to have one’s own sense of right and wrong, and the
freedom to be guided by that sense.”
Section
9 protects people from being discriminated against by the State or by other
people on grounds of inter alia their
sexual orientation, religion, conscience, belief, etc. So section 9 is a very
wide-reaching right for all groups not to be discriminated against. When more
than one right in the Constitution is pitted against each other (as often
happens), the courts must weigh them both within the context of the limitations
clause and try their best to keep both rights in tact as far as possible.
The
media has incorrectly fudged the two questions referred to in this article into
one and thereby confused many people as to what the legal issues are.
The
courts are not going to be entitled to (nor will they) fudge these two
questions because there is a vast difference between saying “I won’t serve you
because you are part of group X” and “I will serve you anytime, I just cannot
be a party to that particular event or action because that event/action goes
against my conscience.”
**************************************************************
*Section 9. “(1)
Everyone is equal before the law and has the right to equal protection and
benefit of the law. (2) Equality includes the full and equal enjoyment of all
rights and freedoms. To promote the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination may be taken. (3) The state may
not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth. (4) No person may unfairly
discriminate directly or indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination. (5) Discrimination on one or more of the
grounds listed in subsection (3) is unfair unless it is established that the
discrimination is fair.”
*Section 15.1
“Everyone has the right to freedom of conscience, religion, thought, belief and
opinion.”
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