Conscience and Cakes: Reaffirming the Distinction Between Institutional Duties and Individual Rights

Abstract

This article suggests that there may be scope to accommodate individual conscience whilst holding institutions to their full civil duties by making a structural distinction between institutions and individual members and employees. This distinction might circumvent the paralysing contrasts between more abstract human rights categories. This article approaches the question of conscience through the lens of a Dutch legislation on the position of wedding officials and in particular through a thorough critique of it by the Netherlands Council of State. The Council’s critique illuminates two important distinctions, first, between institutions and individuals and, second, between conscience and behaviour. These findings are potentially relevant in cases on access of lesbian, gay, and bisexual (LGB) people to services provided by private companies. For example, may photographers and videographers deny services to same-sex couples? May a bakery decline to supply wedding cakes? May a bakery refuse to create a custom-made cake for an LGB event? These questions arose, respectively, in the US cases Elane Photography, Telescope, and Masterpiece cases as well as the British Ashers Bakery case. And, should a Christian law school’s accreditation be rejected when a code of conduct impairs access of LGB students, eg in the Canadian Trinity Western cases?