There have been a number of media reports about the amendment that has been lodged by the Scrutiny Panel following their review of the Marriage Law lodged by the Chief Minister in October 2017.

The Marriage Law as lodged by the Chief Minister permitted religious organisations, Anglican clergy and authorised religious officials to refuse to solemnise or otherwise participate in same sex marriages or marriages involving a transgender person (“Equal Marriage”) without being in breach of discrimination legislation.

Until such time as religious organisations resolve their own internal conflicts over this issue and adopt Equal Marriage, this is one way solve the problem of religious officials being compelled to do something by law that goes against their organisation’s rules and regulations, and Liberate supports this provision for religious organisations and their officials.

This week’s amendment goes further and also permits the following to happen:

1. where the owner, trustee or tenant of an approved location is a religious organisation, they may refuse a social event or function associated with an Equal Marriage; and,
2. where an individual business owner on grounds of religious conviction objects to participating in an Equal Marriage, they may refuse to provide goods and services to the marriage ceremony and/or a social event or function associated with the marriage. However, for the individual to be exempt from the Discrimination Law, they must not be: a civil registrar, an employee of the States of Jersey or any parish, or an employee or subcontractor of a person providing goods and/or services to an Equal Marriage.

The Scrutiny Panel have called this a ‘tolerance clause’. They have said that they are concerned about the absence of protections in the Marriage Law for people who believe they cannot participate in same sex marriage on the basis of their religious convictions.

Liberate does not support this amendment to the Marriage Law and the consequential amendment to the Discrimination Law.

Throughout this debate there has been a conflation of religious belief with being anti-same sex marriage. The Scrutiny Panel has also fallen into this trap in the provisions made by their amendment.

Having a religious conviction does not mean that you will be anti-same sex marriage, just as being part of the LGBT+ community does not mean that you will be pro-same sex marriage. There are a multiplicity of views, and reasons behind those views, across society. All one can safely say is that there are those who are for same sex marriage and those who are not – whether their reason is based on a religious belief or not.

Last month, Indiana University published the first national (USA) study to experimentally examine public opinion on business service provision to sexual minorities. Federal US law currently allows service refusal to sexual minorities, with religious accommodation used to justify denial of services to same sex couples. This is similar to what is being proposed by the Scrutiny Panel and crucially the same justification for doing it. The study demonstrated that American support for the denial of services to same sex couples is driven not by religious-specific freedom but, instead, by personal opposition to marriage rights.

This is not surprising. As human beings, we all have unconscious biases that manifest in prejudicial behaviours against ‘people who are not like us’. Legitimising those prejudices through a selective reading of a sacred text is one way to deal with fears about otherness and bolster confidence about our choice to deny someone else the privileges we enjoy. As the study found, denying services to same sex couples has everything to do with our underlying prejudices and very little to do with a desire to accommodate religious conviction.

This makes sense. If this was not the case, why would some people of religious conviction support same sex marriage? The Scrutiny Panel received submissions from both the Methodist Church and the Jewish Congregation, neither called for a tolerance clause. Religious conviction on its own is not enough to make you anti-same sex marriage, there has to be another ingredient.

This is why Liberate cannot support the Scrutiny Panel’s amendment because it sets up an artificial division within society between those of religious conviction and those in same sex relationships. In seeking to stop the sort of social discord seen in cases such as the Asher’s Bakery case in Northern Ireland and stop those business owners of religious conviction from being put out of business the Scrutiny Panel has made division much more likely.

Take this scenario: a same sex couple approach a florist to do the flowers for their marriage ceremony. The florist refuses because they are a same sex couple.

1. The same sex couple have no means of knowing whether the florist is refusing on the grounds of religious conviction or not. There is no compulsion within the amendment for the florist to declare their religious conviction at the point of service. It would be for the same sex couple to test that person’s religious conviction in a tribunal.
2. The same sex couple had no means of knowing before approaching the florist that they would be refused service. There is no compulsion within the amendment for the florist to publicly declare that they do not serve same sex couples.

What is the first thing that the same sex couple are going to do? They are going to tell people of their bad experience, not necessarily for malicious reasons but to ensure that other same sex couples do not have the same experience. Pretty soon that florist will be on an unofficial ‘blacklist’ and will see their clientele shrink to those who support their view of same sex marriage. This may or may not be enough people to sustain their business.

The second thing that the same sex couple might do is to take the florist to a tribunal for direct discrimination in the provision of goods and services on the grounds of sexual orientation. Taking a tribunal case costs the complainant nothing, defending one would cost the florist. In tribunal the florist would need to prove their religious conviction. As the transgender community will testify, having to prove a personal belief to a tribunal is a degrading experience.

The problem here is that the amendment produced by the Scrutiny Panel does not define ‘religious conviction’ so we have no idea to what degree the florist would need to prove this. It could be just a belief they hold or it could be that they are a regular attendee at a particular place of worship.

Now, take this scenario: a same sex couple approach a florist to do the flowers for their marriage ceremony. The florist refuses because they are already booked for that day.

How do the same sex couple now respond? They look for another florist.

Given the likely outcomes of the first scenario, what is the likelihood that the florist of religious conviction will respond as in the second scenario, even with the Scrutiny Panel’s amendment in place? How different is that from how a florist of religious conviction would respond under the law as it currently stands?

Businesses choose who they serve all the time and adopt numerous strategies to avoid causing potential clients offence when they refuse their business. This is because businesses want to continue in business. They don’t want a reputation as a place that discriminates.

Liberate does not want to see business owners of religious conviction blacklisted. Liberate wants to persuade them to change their minds, to see diversity as a good thing for their business and not something that challenges them. Enabling businesses to shut their doors to a group of people legally does not allow for the possibility that the florist might change their mind once they have witnessed the positive things that opening up marriage to everyone can bring to the island’s economic and social life. Unfortunately, once someone has discriminated against same sex couples that reputation will stick to them.

If you support Liberate’s position on the Scrutiny Panel’s amendment, please sign our petition asking States members not to pass it at the States sitting on 30 January 2018.