Accommodating Intolerant Speech: Religious Free Speech Versus Equality and Diversity

When one fundamental human right conflicts with another, the law has to maintain a balance between both rights, and ensure that on the facts the strongest claim succeeds. In most cases, no one right enjoys trump status over the other and proportionality decides whether the interference with one right is justified by the exercise of the other. That conflict is more complex when free speech or the manifestation of religious views conflict with the duty to promote equality and diversity. When that conflict occurs, the courts, both domestic and European, have tended to give preference to equality policies at the expense of individual speech and beliefs. However, the situation may be different when the person’s views fall short of discriminating against another, and the speaker simply voices an opinion against the other right holder. This article examines UK and European Convention case law in this area; both in terms of accommodating religious free speech and beliefs in the enforcement of equality and diversity policies, and more specifically in regulating anti-gay speech. Specifically, it will ask whether the principle of tolerance inherent in free speech can be recognised when such speech conflicts with the tolerance and respect that should be shown to minority groups.