9 - Balancing the General Right with Sexual Orientation Discrimination

Summary

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.