הזמנות ועוגות חתונה: מתי סירוב לספק שירות לקבוצות חשודות איננו בגדר הפליה אסורה

May providers refuse to serve a client based on the claim that the service conflicts with their religious or moral beliefs? The paper proposes to lay the burden of proof on providers to show that a client was denied service due to specific aspects of the service that contradict the providers’ conscience, and not due to specific characteristics of the customer, for instance, being Hispanic,Muslim, or gay. In particular, the providers will have to show that they would have refused to provide the service in question to anyone who asked them for it, and that they would not have refused to provide other services to this specific client. If providers are successful in showing this,that will demonstrate that their refusal to serve a client has nothing to do with the client’s race, religion, sexual orientation, and so on, but stems from their own difficulty in acting against their deeply-held principles regarding the service itself. We argue that if this is indeed what motivates the providers’ refusal, it is not a case of wrongful discrimination. Based on this proposal, the paper drafts an amendment to the Israeli Anti-Discrimination Law that determines when providers would be allowed to refuse to be involved in projects that are incompatible with the dictates of their conscience. The paper also highlights the advantages of this proposal as compared with another legislative proposal that is under discussion in the Knesset.