Heaven forbid: interrogating the right to discriminate against homosexuals under Article 32 of the constitution
Otieno, Gregory Junior
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Concerns have been raised about the compatibility of religious laws and practices with norms guaranteeing the rights of same-sex couples. Given that some religious teachings declare that same-sex sexual conduct is immoral, and some religions condemn not only same-sex sexual activity but also LGBT individuals, conflicts between the right to freedom from discrimination and the right to manifest one's religion are inevitable. This study considers how conflicts between both rights should be addressed in law. It is particularly concerned with whether religious individuals should be allowed to discriminate in the secular marketplace. It starts from the basis that both these rights are valuable and worthy of protection and contends that a proportionality analysis provides the best method for resolving these conflicts. In particular, it argues that proportionality is a conciliatory method of reasoning because it provides a context-dependent and nuanced answer to these issues, providing scope for re-assessment in future cases. It is also argued that proportionality is advantageous because it inherently demands justification where rights are infringed. The analysis in this study draws primarily upon the recognised sources of Law in Kenya, namely the domestic law of Kenya and the general rules of International law. The study also takes a comparative approach, examining the law in Canada to demonstrate the clash of rights and to compare how these issues have been dealt with by Canadian courts and legislatures.