ABSTRACT

At once it can be seen that the domestic version is more extensive than the Directive. There are, in effect, two exceptions. The second, in reg 7(3), gives churches a free reign to discriminate against homosexuals, even where the only objection is by some of the congregation.115 So, for instance, even where the leaders (or majority of members) have no objection to homosexuality, discrimination may lawfully persist or, in some cases, commence, under the authority of reg 7(3)(b)(ii).116 In such cases there is clearly no ‘legitimate’ aim and as such reg 7(3) goes beyond the wording of Art 4(1) of the Directive. Secondly, to ban gay men because of the opinion of a minority would be disproportionate and, again, in breach of the Directive. It may be argued that Art 4(2) of the Directive allows for this exception, but the underlying principle of that paragraph is religious discrimination and it does not legitimise discrimination on different grounds. It would be akin to allowing a church with racist views to indulge in racial discrimination.