Balancing Competing Dignity Claims: Insights from the United Kingdom and Italy

Frau, Matteo and Breda, Vito (2021) Balancing Competing Dignity Claims: Insights from the United Kingdom and Italy. In: The Inherence of Human Dignity: Law and Religious Liberty, Volume 2. Foundations of Human Dignity. Anthem Press, London, United Kingdom, pp. 165-184. ISBN 9781785276521


Abstract

This paper discusses the balancing between the prerogative to manifest identity based beliefs, such as the support for same sex marriage, and the prerogative to refuse the reproduction of such a message by a service provider. Both prerogatives are the manifestation of human dignity that have normative and pragmatic implications that should be assessed by a deliberative arena. The narrative is supported by a comparative analysis of recent UK jurisprudence and by the evaluations of the statutory measures that inform Italian and European law.

The first manifestation of human dignity in the case is constructed as a prerogative granted to a historically discriminated identity to assess publicly offered services. The second manifestation of human dignity is the prerogative of individuals who are operating a business to refuse to provide a service on the basis that what is asked is perceived as hindering their religious beliefs. In this paper we provide a review of the Northern Irish, the British and the Italian system of rules that informs the accommodation of this dilemma. These three systems are, albeit differently, committed to protect human dignity and they comply, again distinctively, to the set of international obligations that derived from a membership to the Council of Europe and the European Union.

The analysis shows that whilst there are strong indications that international jurisdictions are dynamically changing the balance between the prerogative to manifest and the prerogative to refuse identity based claims, the process of accommodation of concurring manifestations is still better left to the national and regional deliberative arena.

This paper will be divided into sections preceded by an introduction to the case and followed by a conclusion. The first part discusses the Lee v Ashers Baking Company case. The second section discusses the statutory measures that inform Italian law on cases in which there might be an allegation of discrimination. The comparison shows that even in a legal system, like the Italian, where there is a generally entrenched constitutional protection against discrimination, it is unprovable that they will consider the refusal to reproduce identity based beliefs as discriminatory without a specific statutory intervention by the Italian Parliament.


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Item Type: Book Chapter (Commonwealth Reporting Category B)
Refereed: Yes
Item Status: Live Archive
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Date Deposited: 18 Mar 2021 00:09
Last Modified: 18 Mar 2021 00:09
Uncontrolled Keywords: Human dignity, religious freedom, gay rights.
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180109 Corporations and Associations Law
18 Law and Legal Studies > 1801 Law > 180106 Comparative Law
22 Philosophy and Religious Studies > 2204 Religion and Religious Studies > 220402 Comparative Religious Studies
22 Philosophy and Religious Studies > 2299 Other Philosophy and Religious Studies > 229999 Philosophy and Religious Studies not elsewhere classified
Fields of Research (2020): 48 LAW AND LEGAL STUDIES > 4803 International and comparative law > 480302 Comparative law
Socio-Economic Objectives (2008): E Expanding Knowledge > 97 Expanding Knowledge > 970122 Expanding Knowledge in Philosophy and Religious Studies
Socio-Economic Objectives (2020): 23 LAW, POLITICS AND COMMUNITY SERVICES > 2304 Justice and the law > 230499 Justice and the law not elsewhere classified
URI: http://eprints.usq.edu.au/id/eprint/41575

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