'Tolerance' clause “on the scrap heap where it belongs”

Thursday 01 February 2018

Wedding suppliers won’t be able to refuse their services to same-sex or trans couples for religious reasons after the States overwhelmingly kicked out a controversial 'tolerance clause'.

The historic move was made during the long-awaited States debate on the new marriage law which enables equal marriage, after politicians agreed in principle to bring in same-sex weddings back in September 2015.

Although the result may be pleasing to many - the debate itself wasn't easy listening with politicians describing it as "emotional", "discriminatory" and "socially divisive." 

With so many amendments to the Draft marriage law, States members agreed to pass 23 minor changes together in one block vote to get onto the real issue facing the assembly - the so-called ‘tolerance clause'.

Also referred to a ‘conscience’ clause, it’s essentially an ‘opt out’ system which will give businesses legal protection to refuse to take part in any same-sex or trans-couple's marriage ceremonies on grounds of religious belief, without them being prosecuted for discrimination.

Pictured: Deputy John Le Fondré explaining the reasons the Scrutiny Panel brought forward the 'tolerance' clause. 

It’s a move brought forward by the Corporate Services Scrutiny Panel after they felt the ‘quadruple lock’ included in the draft law didn’t go far enough as it only protects religious officials and organisations from having to solemnize same-sex marriages.

But this change has not only divided the assembly, but also the panel itself with Vice-Chairman Deputy Simon Brée and panel member Deputy Kevin Lewis both stating that they don’t support the clause put forward by the Chairman, Deputy John Le Fondré.

As expected, the debate questioned people’s human rights and the level of discrimination this clause would enable if it was passed.

Deputy John Le Fondré stated that the panel unanimously supported same-sex marriage, but this ‘tolerance clause' enabled “Freedom of speech, freedom of belief and freedom of expression.” He reminded his colleagues that the State’s legal advisor - the Attorney General – said the clause was human rights compliant and urged the assembly that this debate was “not about not serving someone because they are gay (…) this is maintaining the right to say ‘no’.”

But this statement was met with disgust by some members, including Reform Jersey Chairman Deputy Sam Mezéc who ordered the clause to be thrown on the “scrap heap where it belongs.” The St. Helier Deputy also likened the views of people who are against same-sex marriage as those of ‘flat earthers.’ He said: “We don’t have a duty to respect and tolerate their view and we do not legislate for them to be protected with this view – as it’s wrong.”

Pictured: Liberate's petition against the 'tolerance clause' attracted over 5,000 signatures ahead of the States debate.

Other backbenchers who also opposed the change to the marriage law re-labelled it as an ‘intolerance’ clause – saying the debate wouldn’t even be happening if it was enabling people to refuse marriage because of the colour of the couple’s skin or religious beliefs.

But St. Ouen Deputy Richard Renouf disputed this, saying there is “no recognised belief that discriminates on grounds of race.” He suggested the island would have “a stronger and freer society if we acknowledge there are competing views” and he added that views opposing same-sex marriage were “normal views of right-thinking people for generations, up to very recent times.”

The implications of the ‘tolerance clause' also caused a lot of confusion among States members, some of whom requested clarifications from the Solicitor General during the debate. Deputy Judy Martin highlighted that the clause only protected the decision of the business leader and not the employees, who could be legally ordered to provide a service even if it went against their religious beliefs.

Deputy Montfort Tadier questioned the Solicitor General on how the civil court will determine that a business has refused their services for religious reasons, when in fact it was a moral decision, which isn’t covered by the clause. The Solicitor General said the business owner would need to show evidence that they were motivated by religious convictions.

Pictured: The new draft marriage law debate was dominated by a move to enable wedding suppliers to legally reject their services if the wedding went against their religious beliefs. 

The Trinity Constable took the debate as an opportunity to apologise to the gay community for his vote against same-sex marriage in 2015. He said it was a decision taken on moral principals and not religious beliefs, but he’s realised he “was wrong” and “what right did he have to object to a couple’s love.” Constable Philip Le Sueur said he didn’t support the clause as opinions change, just as his had done. His speech made some States members, including the Deputy of St. Ouen, reconsider their view on the clause. 

Deputy Russell Labey described the clause as a "nasty little amendment", while Deputy Scott Wickenden went one step further and described the whole draft marriage law as a "dog’s dinner" due to the number of grammar mistakes and errors within the legislation, which the Chief Minister admitted was "rushed." Deputy Wickenden said: "Had the LGBT community not waited long enough for it, I would say scrap it! This is what we get after three-and-a-half years? It’s very disappointing.”

The Chief Minister - who left out a ‘tolerance clause' in the draft marriage law despite “revisiting the issue” a number of times as he felt the balance between protecting “religious beliefs and not promoting discrimination is really difficult” - said the process of the new law “hasn’t been building bridges, but has built walls within the community.”

The States overwhelmingly threw out the 'tolerance clause' by a 40-5 vote, a move Deputy Jeremy Macon said would show that "love wins."

EQUAL MARRIAGE PASSED! 43.1. Have your cake and eat it

— DIFERA (@LiberateJersey) February 1, 2018

Responding to the vote, Chief Executive Officer of Liberate, Vic Tanner Davy said: “Liberate does not want to see anybody taken to tribunal for their genuinely held religious beliefs. Our concern when the Scrutiny Panel lodged the amendment containing the tolerance clause was that it was unworkable in practice and would be highly divisive, resulting in more not fewer tribunal cases. We would much prefer to see an island where differing beliefs are accepted and respected – if we are kind to one another, nobody should ever end up in a tribunal.”

The States ended the debate by passing the draft marriage law with a 43-1 vote with one abstention; enabling same-sex and trans couple weddings, more choice on who can conduct marriages and where they are held - including open air weddings in Jersey. It also brings in more safeguards to protect people from sham and forced marriages in future.