The chapter argues that conscientious exemptions should not be granted to providers of commercial goods and services from the prohibition of sexual orientation discrimination on the basis that LGB people would thereby be treated by the law as second-class citizens. The chapter rejects the charge that the right to non-discrimination would consequently be prioritized over general right and that those that oppose homosexuality would be treated as second-class citizens. The majority of the chapter is devoted to showing that several fundamental rights (i.e. non-discrimination, association and expression) prohibit the state from treating those that oppose homosexuality as second-class citizens. Consequently, given the balancing of rights and harms involved, the right to non-discrimination on the ground of sexual orientation will prevail in certain circumstances while the general right to conscientious exemption will prevail in others.

This chapter investigates whether there is a general right to conscientious exemption in US law. The chapter concludes that there is, albeit its scope varies geographically. There are at least five rules of law which ground the right. These are: (1) the Free Exercise Clause of the First Amendment under federal constitutional law as interpreted by the USSC in Smith (albeit this is now very narrow), and the Free Exercise clauses of some state constitutions which did not interpret their own constitutions according to Smith; (2) The Religious Freedom Restoration Act (RFRA) which applies to the federal government and similar state legislation that applies in the states which have enacted them; (3) the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which applies mainly to state governments in the context of land regulation, zoning laws and prisoners; (4) Title VII of the Civil Rights Act of 1964 (and similar state level legislation) which requires certain categories of employers to accommodate the religious beliefs of their employees in performing their employment duties; and (5) the constitutional requirements of Church Autonomy.

This short conclusory chapter summarizes the main claims of the book and summarizes how the book has provided evidence to support those claims. It shows that the book’s overall contribution then is to have demonstrated that there is, and there should be in a liberal state, a general right to conscientious exemption available to a person who objects to any legal obligation on the basis of a religious or non-religious conscientious belief.

This chapter complements part 4 of Chapter 1 by engaging with and refuting several objections which may be mounted to the arguments advanced there. Those objections are considered in this chapter while making the case for an attractive interpretative theory of how conscientious exemptions should be regulated in a liberal state. A liberal state is here understood to be one committed to individual freedom and state neutrality between different conceptions of the good life. This chapter calls the interpretative theory the Liberal Model of Conscientious Exemptions. This theory has the following four defining propositions:A. The liberal state should grant a general right to conscientious exemption.B. The liberal state should refrain from passing moral judgement on the content of the beliefs which give rise to a claim for conscientious exemption.C. The liberal state should neither privilege nor disadvantage religious beliefs over non-religious ones when considering whether to grant a conscientious exemption.D. The liberal state should grant conscientious exemptions to claimants who sincerely hold a conscientious objection which would not disproportionately impact the rights of others or the public interest.The chapter defends each of the propositions in turn.

The chapter argues that the general right to conscientious exemption in UK law is not only available to religious objectors. Either under Art 9 or anti-discrimination legislation, the relevant statutory materials and case law explicitly make the right available to objections grounded in religious and non-religious beliefs. As associated case law makes clear, what is important is not the religious nature of the beliefs at hand but whether those sincerely held beliefs satisfy the Dignity, Importance and Intelligibility Requirements set out in the chapter. It is argued that allowing non-religious belief-holders to invoke the general right to conscientious exemption has not made that right unmanageable. This is because few holders of non-religious beliefs have so far actually invoked the right. So far, only in four cases has the right been invoked by a holder of a non-religious belief in the entirety of reported UK case law. Finally, the criteria necessary for the successful enjoyment of the right ensure that unmeritorious claims can be dismissed. It follows that the fact that the general right to conscientious exemption under UK law is not a privilege of religious individuals and does not undermine the manageability of the general right.

The chapter identifies three rules of law which ground the general right to conscientious exemption in Canadian law. The primary source of this right is to be found in anti-discrimination statutes and the duty of reasonable accommodation that case law has read into them. This rule of law is the most extensive. It arises in each Canadian jurisdiction; it binds public and private persons; and it arises in a variety of contexts, including employment and provision of goods and services. The right to freedom of conscience and religion under the Canadian and Quebec Charters also gives rise to a general right to conscientious exemption which applies to public bodies but not to private persons. Depending on which exercise of public power is concerned (administrative action or law of general application) the legal analysis will differ. Administrative bodies’ refusal to grant an exemption cannot be unreasonable. Legislative measures cannot infringe that right disproportionately.

The chapter introduces the main claims of the book, how they are defended and their implications. The chapter then makes a positive case in favour of the general right to conscientious exemption and for it being equally available to religious and non-religious conscientious objectors. It argues that a non-absolute right to conscientious exemption is justified by reference to a cluster of moral values, including the demands of the state’s duty of neutral pluralism (the duty being grounded in the value of individual moral responsibility and respect for ethical pluralism), respect for personal autonomy, freedom of conscience and concern for individual well-being. The chapter justifies the institution of the general right by showing that it provides holders of minority moral views with an alternative forum, i.e. a court of law, where they may be able to bring a claim and ask for exemptions from legal obligations which impinge on their conscience. It concludes by showing that the justifications provided for exemptions generally and for the general right cannot justify the right being a privilege of only those that object on the basis of non-religious beliefs. Non-religious conscientious beliefs should also benefit from the general right.

This chapter argues that the general right to conscientious exemption should not be understood as a privilege of persons who object on the basis of religious beliefs. Three arguments are advanced for the right also being available on the basis of non-religious conscientious beliefs. The first argument, principally relying on the precedential force of Welsh, is to interpret the reference to ‘religion’ in the statutory grounds of the general right to include conscientious non-religious beliefs. The second, the Establishment Clause Argument, shows that the USSC has consistently held that exemptions that are reserved only to religious objectors violate the Establishment Clause which prohibits government from favouring religion over irreligion. The third argument, the Equal Protection Argument, shows that exemptions that are reserved only for religious objectors violate the Equal Protection Clause (including its application to the federal government through the Due Process Clause) which prohibits government from drawing arbitrary distinctions between persons. The chapter concludes by showing that under the constitutional doctrine of Church Autonomy, religious institutions enjoy exemptions which non-religious associations can also benefit from under the freedom of expressive association. All grounds of the general right are therefore shown to be available to non-religious objectors.

The chapter shows that there is a general right to conscientious exemption in UK law. There are at least two rules of law which ground the right. These are (a) the requirement that public authorities and legislation (both primary and subordinate) comply with the right to freedom of thought, conscience and religion under the Human Rights Act 1998 (HRA); and (b) the prohibition of indirect discrimination on the basis of religion or belief in employment and provision of goods and services arising under anti-discrimination legislation. The chapter tentatively sets out another rule of law which may ground the general right. This is the prohibition of discrimination on the ground of religion in the enjoyment of Convention Rights arising under Art 14 of the European Convention of Human Rights (‘ECHR’). The reason this ground is tentative is that it has not been relied on in UK courts although it has been successfully relied on in the European Court of Human Rights (‘ECtHR’) to receive an exemption from a legislative rule. Without explicit UK case law it is unwise to declare that this rule of law is another ground of the general right in UK law.

The chapter argues that the general right to conscientious exemption in Canada should not be interpreted to be available only to religious people. This is for several reasons. First, the general right to conscientious exemption is available under the right to freedom of conscience under s 2(a) of the Canadian Charter and s 3 of the Quebec Charter. Albeit there are only a handful of cases on this right and even though the SCC has not unequivocally delivered a judgment on this, it is clear that the existing cases hold that freedom of conscience protects non-religious conscientious beliefs. Secondly, even though the general right to conscientious exemption arising under anti-discrimination statutes appears to be a privilege of only those with religious beliefs, it has been argued that this would violate the Canadian Charter guarantee of equality rights under s 15 and freedom of conscience under s 2(a). The appropriate remedy, for most of the anti-discrimination statutes, would be to read in conscience as a protected characteristic. This would entail that, in relation to all the rules of law which guarantee the general right to conscientious exemption, the right is not a privilege of those that object on the basis of a religious belief.