Conscientious Objection: Dissent and Democracy in a Common Law Context (Ius Gentium: Comparative Perspectives on Law and Justice, 98) 3030976475, 9783030976477

Table of contents :
Preface
Acknowledgements
Contents
Part I: State, Citizen and Dissent
Chapter 1: Conscience and Conscientiousness: Principles, Concepts, and Parameters
1.1 Introduction
1.2 Principles and Definitions
1.2.1 Religion, Belief and Matters of Conscience
1.2.1.1 Traditional Religions
Christianity
Islam
Judaism
1.2.1.2 Contemporary Belief Systems
Legitimacy and Cogency
1.2.1.3 Matters of Conscience
Ethics
1.2.1.4 Public and Private
1.2.1.5 The Public Interest
1.2.2 State Neutrality Towards Religion and Belief
1.2.2.1 The Secular and the Sacred
Secularism
State Preferencing of Religion
State Defence of Cultural Heritage
1.3 Conscientious Objection: Concept, Interpretation and the Law
1.3.1 Objections: Conscientious and Otherwise
1.3.1.1 The Conscientious Objector
Singular or Also Collective
Conscientiousness
1.3.1.2 The Means or Method of Objecting
Whistleblowers
Victim of Religious/Belief Discrimination
Conscientious Objection and/or Discrimination
Social Activists
1.3.1.3 The Subject
A Principled Rejection of the Status Quo
1.3.1.4 Selectivity and Scale
1.3.2 Objections: Conscientiousness and the Law
1.3.2.1 Authority
Government and Legislature in Democratic Societies
1.3.2.2 Objecting Conscientiously and the Law
A Specific Legal Duty
1.4 Parameters
1.4.1 Origins: Exemption on Grounds of Religious Belief
1.4.1.1 Exemption from Military Service
1.4.1.2 Exemption from Oaths
1.4.1.3 Exemption from Vaccinations
1.4.2 Broadening the Parameters: The De-Criminalisation of Abortion, Homosexuality and Prostitution
1.4.2.1 Reproductive Rights
Decriminalisation
Assisted Reproduction Technology
1.4.3 Extending the Parameters by Analogy: Same Sex Issues Etc
1.4.3.1 Same Sex Relationships: Contemporary Policy
Legal Affirmation of Same Sex Relationships
Same Sex Marriage
1.4.3.2 Legal Recognition for Trans Gender Identity
Procedures for Transitioning
1.5 Conclusion
References
Chapter 2: Dissent and the Common Law Nations: Pluralism and Objecting Conscientiously
2.1 Introduction
2.2 Common Law, Christianity and Culture: A Shared History and a Shared Basis for Dissent
2.2.1 The Common Law Jurisdictions: A Shared Cultural Heritage
2.2.1.1 Moral Imperatives and Dissent
Moral Imperatives: Violence Related
Moral Imperatives: Sex Related
Moral Imperatives: Health
Moral Imperatives: Education
Moral Imperatives: `Life´ Related
2.3 Democracy and the Common Law Nations
2.3.1 Democratic Society
2.3.1.1 The Culture Wars
Morality Issues
Proxies for Religious Belief
2.3.2 Dissent
2.3.2.1 Civil Disobedience
Conscientious Objection and Civil Disobedience
Social Movements
Social Activists
2.3.2.2 Insurrection and Terrorism
Conscientious Objection and Ideological Violence
2.4 Civil Society, Citizenship, Pluralism and the Law
2.4.1 Civil Society
2.4.1.1 Liberal Democracy and Civil Society
Religion and Civil Society
2.4.1.2 Civil Society, Citizenship and Pluralism
Citizenship
Citizenship and Indigenous People
Citizenship, Civic Duties and Conscientious Objection
2.4.1.3 Pluralism
Pluralism in Practice
Diversity
2.5 Law and Human Rights
2.5.1 Law
2.5.1.1 Law and National Identity
Equality and Religion/Belief/Conscience
2.5.1.2 Individual Identity
2.5.2 Fundamental Rights
2.5.2.1 Right to Freedom of Expression
2.5.2.2 Right to Freedom of Association/Assembly
2.5.2.3 Right to Freedom of Religion
2.5.3 Rights to Private Life and to Social Participation
2.5.3.1 Right to Marry and to Found a Family
2.5.3.2 Right to Education
2.5.3.3 Right to Employment
2.5.3.4 Right to Health
2.5.3.5 Right to Equality and Non-Discrimination
Equality and the Indivdual
Equality and Religion/Beliefs/Conscience
Equality and Religious Organisations
2.6 Conclusion
References
Part II: Conscientious Objection and Contemporary International Law
Chapter 3: The International Legal Framework for Conscientious Objection and Themes for Comparative Jurisdictional Analysis
3.1 Introduction
3.2 Framework of International Instruments
3.2.1 The Universal Declaration of Human Rights (UDHR)
3.2.2 The European Convention on Human Rights (ECHR)
3.2.3 The International Covenant on Civil and Political Rights (ICCPR)
3.2.4 The International Covenant on Economic, Social and Cultural Rights (ICESCR)
3.2.5 The UN Convention on the Rights of the Child (UN CRC)
3.2.6 The Charter of Fundamental Rights of the European Union
3.2.7 The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biolo...
3.2.8 The EU Charter of Fundamental Rights
3.2.9 The United Nations Declaration on the Rights of Indigenous Peoples
3.2.10 Convention Relating to the Status of Refugees
3.2.11 The American Convention on Human Rights
3.3 Framework of Courts and Regulatory Bodies
3.3.1 Courts, Commissions and Other Regulatory Bodies
3.3.1.1 The Council of Europe
3.3.1.2 The European Court of Justice (ECJ)
3.3.1.3 The European Court of Human Rights (ECtHR)
3.3.1.4 The UN Human Rights Commission/Council
3.3.1.5 The UN Human Rights Committee (UN HR Committee)
3.3.1.6 Regional Human Rights Commissions
3.3.2 Monitoring and Review Procedures
3.3.2.1 The Universal Periodic Review Process
3.3.2.2 The US Country Reports on Human Rights Practices
3.3.2.3 The Reporting Process of the UN Convention on the Rights of the Child
3.4 The Principle of Conscientious Objection: Legal Definition and Interpretation
3.4.1 Human Rights and Conscientious Objection
3.4.1.1 Conscientious Objection in a Military Context
3.4.1.2 Conscientious Objection in a Non-military Context
3.4.1.3 Contiguous Extension of Rights
3.4.2 Freedom of Belief/Conscience
3.4.2.1 Sincerity of Belief and Matters of Conscience
3.4.2.2 The Right to Hold and to Manifest a Belief or Matter of Conscience
3.4.3 State Neutrality
3.4.3.1 Legitimacy of Belief
3.4.3.2 Universal Legislation That Unfairly Burdens a Minority
3.4.3.3 Victimisation
3.5 Fundamental Human Rights as Grounds for State Interference in Matters of Belief/Conscience/Religion in a Democratic Society
3.5.1 The ECtHR and a `Democratic Society´
3.5.1.1 Characteristics of a Democratic Society
3.5.1.2 State Intervention in a Democratic Society
3.5.2 Freedom of Expression
3.5.2.1 Conscientious Objection
3.5.3 Freedom of Association/Assembly
3.5.3.1 Conscientious Objection
3.5.4 Freedom of Religion
3.5.4.1 Conscientious Objection
3.5.4.2 Religious Exemption
3.5.4.3 Proselytism
3.6 Conscientious Objection and Equality Caselaw
3.6.1 Public Service Providers
3.6.2 Public Health
3.6.2.1 Right to Life and Access to Medical Treatment
3.6.2.2 Refusal of Lifesaving Medical Treatment
3.6.2.3 Vaccines
3.6.2.4 Medical Practitioners: Abortion Issues
3.6.2.5 Medical Practitioners: IVF Issues
3.6.2.6 Medical Practitioners: Assisted Death Issues
3.6.3 Public Education
3.6.3.1 Parents, Schools and Conscientious Objection
3.6.3.2 Faith Schools
3.6.3.3 Home Schooling
3.6.3.4 Religious Dress, Prayers etc in Schools
3.6.4 Public Officials and Justice Issues
3.6.4.1 Whistleblowers
3.6.4.2 Prisoners Right to Challenge Conditions on Grounds of Conscientious Objection
3.6.4.3 Asylum Seekers Right to Challenge Deportation on Grounds of Conscientious Objection and SOGI
3.6.5 Citizenship and Conscientious Objection
3.6.5.1 Service in the National Armed Forces
3.6.5.2 Refusal to Pay Tax
3.6.5.3 Pensions and Welfare Benefit Entitlements etc
3.6.6 Private Service Provision
3.6.6.1 Right of Retailers to Refuse Goods or Services on Grounds of Conscientious Objection
3.6.6.2 Right of Employers to Hire and Fire on Grounds of Conscientious Objection
3.7 Conclusion
References
Part III: Jurisdictional Survey
Chapter 4: England and Wales
4.1 Introduction
4.2 Principles, Doctrines and Definitions
4.2.1 Religion, Belief and Matters of Conscience
4.2.1.1 Traditional Religions
4.2.1.2 Contemporary Belief Systems and Matters of Conscience
Legitimacy and Cogency
4.2.2 State Neutrality
4.2.2.1 Preferencing Christianity and the Christian Cultural Heritage
4.2.2.2 The Religious Exemption
4.3 Conscientious Objection and Exemption: An Evolving Policy
4.3.1 Initial Exemptions
4.3.1.1 Legal Recognition of `Conscience´
4.3.1.2 An Aspect of Citizenship
4.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy
4.3.3 Same Sex Relationships: Evolving Contemporary Policy
4.3.4 Medical Advancement: Contiguous Policy Development
4.4 From Policy to Legislation
4.4.1 Universal Legislative Constraints
4.4.1.1 Laws That Unfairly Burden a Minority
4.4.1.2 Criminal Law Constraints
Covid-19 Pandemic Constraints
4.4.2 Contemporary Government Initiatives
4.5 Legislative Framework: International and Domestic
4.5.1 International Legislation
4.5.2 Domestic Legislation
4.5.2.1 The Marriage (Same Sex Couples) Act 2013
4.5.2.2 The Equality Act 2010
4.5.2.3 The Equality Act (Sexual Orientation) Regulations 2007
4.5.2.4 The Racial and Religious Hatred Act 2006
4.5.2.5 The Gender Recognition Act 2004
4.5.2.6 The Employment Equality (Religion or Belief) Regulations 2003
4.5.2.7 The Human Rights Act 1998
4.5.2.8 The Human Fertilisation and Embryology Act 1990
4.5.2.9 The Public Order Act 1986
4.5.2.10 The Abortion Act 1967
4.6 Framework of Courts and Regulatory Bodies
4.6.1 International Courts and Regulatory Bodies
4.6.1.1 The European Court of Human Rights (ECtHR)
4.6.1.2 The Court of Justice of the European Union (CJEU or ECJ)
4.6.1.3 The Human Rights Committee (HRC)
4.6.2 Domestic Courts and Regulatory Bodies
4.6.2.1 The Equality and Human Rights Commission (EHRC)
4.6.2.2 The Employment Appeal Tribunal (EAT)
4.6.2.3 The Employment Tribunal
4.7 Fundamental Human Rights and Conscience
4.7.1 Freedom of Expression
4.7.1.1 Personal Identity Issues
4.7.1.2 Blasphemy and Proselytism
4.7.1.3 Whistleblowers
Disclosures and the Law
In a Public Health Context
In a National Security Context
4.7.2 Right to Freedom of Association/Assembly
4.7.2.1 Corporate Entities
4.7.3 Right to Freedom of Religion
4.7.3.1 Manifesting Beliefs
Religion Specific Clothing, Symbols, Customs etc
4.7.3.2 Affirmative Action
4.8 Conscientious Objection and Equality: Contemporary Caselaw
4.8.1 Public Health
4.8.1.1 Abortion, Contraception IVF and Surrogacy
Abortion
Contraception
IVF and Surrogacy
SOGI Related Health Issues
4.8.1.2 Medical Practitioners and Assisted Death
Suicide
Refusing Medical Treatment
Medically Assisted Voluntary Death
4.8.1.3 Blood and Organ Donations
4.8.1.4 Vaccination
Law, Government and Vaccination in the Covid-19 Pandemic
4.8.2 Social Care Services
4.8.2.1 Adoption and Foster Care
Service Refusal
4.8.2.2 Social Care Facilities and Benefits
4.8.2.3 Public Officials: Marriage Registrars etc
Marriage Registrars
Magistrates
Other Public Officials
4.8.3 Public Education
4.8.3.1 Schools, Teachers and Parents
Religion Specific Clothing: Teachers
Religion Specific Clothing: Pupils
Prayers, Symbols and Religious Ceremonies etc
SOGI Related Issues
4.8.3.2 Educational Content
SOGI Related Curriculum Content
4.8.3.3 Faith Schools
4.8.3.4 Colleges/Universities
LGBT Related Issues
Affirmative Action
4.8.4 Public Defence and Security
4.8.4.1 Military Issues
Service in the National Armed Forces
Transgender Military Personnel
4.8.4.2 Prisoners and Asylum Seekers
Prisoners
Asylum Seekers
4.8.5 Employment
4.8.5.1 Right of Employers to Hire and Fire
Religious Organisations
Secular Organisations
SOGI Related Issues
4.8.5.2 The Workplace
Undue Hardship
Sincerity of Belief
4.8.6 Commercial Services
4.8.6.1 Goods and Services
4.8.6.2 Religious Owners of Commercial Businesses
4.9 Conclusion
References
Chapter 5: Ireland
5.1 Introduction
5.2 Principles, Doctrines and Definitions
5.2.1 Religion, Belief and Matters of Conscience
5.2.1.1 Traditional Religions
5.2.1.2 Contemporary Belief Systems and Matters of Conscience
Legitimacy and Cogency
5.2.2 State Neutrality
5.2.2.1 Preferencing Christianity and the Christian Cultural Heritage
5.2.2.2 The Religious Exemption
5.3 Conscientious Objection and Exemption: An Evolving Policy
5.3.1 Initial Exemptions
5.3.1.1 Legal Recognition of `Conscience´
5.3.1.2 An Aspect of Citizenship
5.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy
5.3.3 Same Sex Relationships: Evolving Contemporary Policy
5.3.4 Medical Advancement: Contiguous Policy Development
5.4 From Policy to Legislation
5.4.1 Universal Legislative Constraints
5.4.1.1 Laws That Unfairly Burden a Minority
5.4.1.2 Criminal Law Constraints
Covid-19 Pandemic Constraints
5.4.2 Contemporary Government Initiatives
5.5 Legislative Framework: International and Domestic
5.5.1 International Legislation
5.5.1.1 The European Convention on Human Rights (ECHR)
5.5.1.2 The International Covenant on Civil and Political Rights (ICCPR)
5.5.2 The Constitution and Domestic Legislation
5.5.2.1 The Constitution
5.5.2.2 The Health (Regulation of Termination of Pregnancy) Act 2018
5.5.2.3 The Education (Admission to Schools) Act 2018
5.5.2.4 The Gender Recognition Act 2015
5.5.2.5 The Marriage Act 2015
5.5.2.6 The Workplace Relations Act 2015
5.5.2.7 The Employment Equality Acts 1998-2015
5.5.2.8 The Equal Status Acts 2000-2018
5.5.2.9 The Equality Act 2004
5.5.2.10 The European Convention on Human Rights Act 2003
5.5.2.11 The Prohibition of Incitement to Hatred Act 1989
5.5.2.12 Other Legislation
5.6 Framework of Courts and Regulatory Bodies
5.6.1 International Courts and Regulatory Bodies
5.6.1.1 The European Court of Human Rights (ECtHR)
5.6.1.2 The Court of Justice of the European Union (CJEU or ECJ)
5.6.1.3 The Human Rights Committee (OHCHR)
5.6.2 Domestic Courts and Regulatory Bodies
5.6.2.1 The Irish Human Rights and Equality Commission (IHREC)
5.6.2.2 The Workplace Relations Commission (WRC)
5.6.2.3 The Labour Court
5.7 Fundamental Human Rights and Conscience
5.7.1 Right to Freedom of Expression
5.7.1.1 Personal Identity Issues
5.7.1.2 Blasphemy and Proselytism
5.7.1.3 Whistleblowers
Disclosures and the Law
In a Public Service Context
In a National Security Context
5.7.2 Right to Freedom of Association/Assembly
5.7.2.1 Corporate Entities
5.7.3 Right to Freedom of Religion
5.7.3.1 Manifesting Beliefs
Religion Specific Clothing, Symbols, Customs Etc
5.7.3.2 Affirmative Action
5.8 Conscientious Objection and Equality: Contemporary Caselaw
5.8.1 Public Health
5.8.1.1 Abortion, Contraception IVF and Surrogacy
Abortion
Contraception
IVF and Surrogacy
SOGI Related Health Issues
5.8.1.2 Medical Practitioners and Assisted Death
Suicide
Refusing Medical Treatment
Medically Assisted Death
5.8.1.3 Blood and Organ Donations
5.8.1.4 Vaccination
Law, Government and Vaccination in the Covid-19 Pandemic
5.8.2 Social Care Services
5.8.2.1 Adoption and Foster Care
Service Refusal
5.8.2.2 Social Care Facilities and Benefits
5.8.2.3 Public Officials: Marriage Registrars Etc
Marriage Registrars
Other Public Officials
5.8.3 Public Education
5.8.3.1 Schools, Teachers and Parents
Access
Religion Specific Clothing: Teachers
Religion Specific Clothing: Pupils
Prayers, Symbols and Religious Ceremonies Etc
SOGI Related Issues
5.8.3.2 Educational Content
SOGI Related Curriculum Content
5.8.3.3 Faith Schools
5.8.3.4 Colleges/Universities
LGBT Related Issues
Affirmative Action
5.8.4 Public Defence and Security
5.8.4.1 Military Issues
Service in the National Armed Forces
Transgender Military Personnel
5.8.4.2 Prisoners and Asylum Seekers
Prisoners
Asylum Seekers
5.8.5 Employment
5.8.5.1 Right of Employers to Hire and Fire
Religious Organisations
Secular Organisations
SOGI Related Issues
5.8.5.2 The Workplace
Undue Hardship
Sincerity of Belief
5.8.6 Commercial Services
5.8.6.1 Goods and Services
5.8.6.2 Religious Owners of Commercial Businesses
5.9 Conclusion
References
Chapter 6: United States of America
6.1 Introduction
6.2 Principles, Doctrines and Definitions
6.2.1 Religion, Belief and Matters of Conscience
6.2.1.1 Traditional Religions
6.2.1.2 Contemporary Belief Systems and Matters of Conscience
6.2.2 State Neutrality
6.2.2.1 Preferencing Christianity and the Christian Cultural Heritage
6.2.2.2 The Religious Exemption
6.2.2.3 The `Ministerial Exception´
6.3 Conscientious Objection and Exemption: An Evolving Policy
6.3.1 Initial Exemptions
6.3.1.1 Legal Recognition of `Conscience´
6.3.1.2 An Aspect of Citizenship
6.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy
6.3.3 Same Sex Relationships: Evolving Contemporary Policy
6.3.4 Medical Advancement: Contiguous Policy Development
6.4 From Policy to Legislation
6.4.1 Universal Legislative Constraints
6.4.1.1 Laws that Unfairly Burden a Minority
6.4.1.2 Criminal Law Constraints
6.4.2 Contemporary Government Initiatives
6.4.2.1 The Right to Conscientious Objection
6.5 Legislative Framework: International and Domestic
6.5.1 International Legislation
6.5.1.1 The American Convention on Human Rights
6.5.2 The Constitution and Federal Legislation
6.5.2.1 The Constitution
6.5.2.2 Conscience Protection Act 2019
6.5.2.3 The Whistleblower Protection Enhancement Act 2012 (WPEA)
6.5.2.4 The Affordable Care Act 2010
6.5.2.5 The Hate Crimes Prevention Act 2009
6.5.2.6 The Religious Land Use and Institutionalised Persons Act 2000
6.5.2.7 The Personal Responsibility and Work Opportunity Reconciliation Act 1996 (PRWORA)
6.5.2.8 The Religious Freedom Restoration Act 1993 (RFRA)
6.5.2.9 The Equal Access Act 1984
6.5.2.10 The Civil Rights Act 1964: Title VII
6.5.2.11 Other Legislation
6.5.2.12 Equality and Non-Discrimination
6.6 Framework of Courts and Regulatory Bodies
6.6.1 International Courts and Regulatory Bodies
6.6.1.1 The Human Rights Committee (HRC)
6.6.2 Domestic Courts and Regulatory Bodies
6.6.2.1 Federal Courts
6.6.2.2 The Equal Employment Opportunity Commission (EEOC)
6.7 Fundamental Human Rights and Conscience
6.7.1 Freedom of Expression
6.7.1.1 Personal Identity Issues
6.7.1.2 Blasphemy and Proselytism
6.7.1.3 Whistleblowers
6.7.2 Right to Freedom of Association/Assembly
6.7.2.1 Corporate Entities
6.7.3 Right to Freedom of Religion
6.7.3.1 Manifesting Beliefs
6.7.3.2 Indigenous Beliefs
6.8 Conscientious Objection and Equality: Contemporary Caselaw
6.8.1 Public Health
6.8.1.1 Abortion, Contraception IVF and Surrogacy
6.8.1.2 Medical Practitioners and Assisted Death
6.8.1.3 Blood and Organ Donations
6.8.1.4 Vaccination
6.8.2 Social Care Services
6.8.2.1 Adoption and Foster Care
6.8.2.2 Social Care Facilities and Benefits
6.8.2.3 Public Officials: Marriage Registrars Etc.
6.8.3 Public Education
6.8.3.1 Schools, Teachers and Parents
6.8.3.2 Educational Content
6.8.3.3 Faith Schools
6.8.3.4 Colleges/Universities
6.8.4 Public Defence and Security
6.8.4.1 Military Issues
6.8.4.2 Prisoners and Asylum Seekers
6.8.5 Employment
6.8.5.1 Right of Employers to Hire and Fire
6.8.5.2 The Workplace
6.8.6 Commercial Services
6.8.6.1 Goods and Services
6.8.6.2 Religious Owners of Commercial Businesses
6.9 Conclusion
References
Chapter 7: Canada
7.1 Introduction
7.2 Principles, Doctrines and Definitions
7.2.1 Religion, Belief and Matters of Conscience
7.2.1.1 Traditional Religions
7.2.1.2 Contemporary Belief Systems and Matters of Conscience
Legitimacy and Cogency
Beliefs of Indigenous People
7.2.2 State Neutrality
7.2.2.1 Laïcité
7.2.2.2 Preferencing Christianity and the Christian Cultural Heritage
Indigenous People
7.2.2.3 The Religious Exemption
7.3 Conscientious Objection and Exemption: An Evolving Policy
7.3.1 Initial Exemptions
7.3.1.1 Legal Recognition of `Conscience´
7.3.1.2 An Aspect of Citizenship
7.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy
7.3.3 Same Sex Relationships: Evolving Contemporary Policy
7.3.4 Medical Advancement: Contiguous Policy Development
7.4 From Policy to Legislation
7.4.1 Universal Legislative Constraints
7.4.1.1 Laws that Unfairly Burden a Minority
7.4.1.2 Criminal Law Constraints
Covid-19 Pandemic Constraints
7.4.2 Contemporary Government Initiatives
7.4.2.1 SOGI Related Initiatives
7.4.2.2 Religion Related Initiatives
7.5 Legislative Framework: International and Domestic
7.5.1 International Legislation
7.5.1.1 The International Covenant on Civil and Political Rights (ICCPR)
7.5.1.2 The UN Declaration on the Rights of Indigenous People (UNDRIP)
7.5.1.3 Other
7.5.2 Domestic Constitution and Legislation
7.5.2.1 The Constitution
7.5.2.2 The Canadian Charter of Rights and Freedoms
7.5.2.3 The Transgender Rights Bill C 16 2017
7.5.2.4 The Employment Equity Act 1996
7.5.2.5 The Canadian Multiculturalism Act 1988
7.5.2.6 The International Centre for Human Rights and Democratic Development Act 1985
7.5.2.7 The Statutes of Canada 1841-1851
7.5.3 Other Legislation
7.5.3.1 Equality and Non-Discrimination
7.6 Framework of Courts and Regulatory Bodies
7.6.1 International Courts and Regulatory Bodies
7.6.1.1 The Human Rights Committee (HRC)
7.6.2 Domestic Courts and Regulatory Bodies
7.6.2.1 The Supreme Court of Canada (SCC)
7.6.2.2 The Canadian Human Rights Commission (CHRC)
7.6.2.3 The Canadian Human Rights Tribunal
7.7 Fundamental Human Rights and Conscience
7.7.1 Freedom of Expression
7.7.1.1 Personal Identity Issues
Indigenous People
7.7.1.2 Blasphemy and Proselytism
7.7.1.3 Whistleblowers
Disclosures and the Law
In a Public Service Context
In a National Security Context
7.7.2 Right to Freedom of Association/Assembly
7.7.2.1 Corporate Entities
7.7.3 Right to Freedom of Religion
7.7.3.1 Manifesting Beliefs
Religion Specific Clothing, Symbols, Customs Etc
7.7.3.2 Indigenous Beliefs
Affirmative Action
7.8 Conscientious Objection and Equality: Contemporary Caselaw
7.8.1 Public Health
7.8.1.1 Abortion, Contraception IVF and Surrogacy
Abortion
Contraception
IVF and Surrogacy
SOGI Related Health Issues
7.8.1.2 Medical Practitioners and Assisted Death
Suicide
Refusing Medical Treatment
Medically Assisted Death
7.8.1.3 Blood and Organ Donations
7.8.1.4 Vaccination
Law, Government and Vaccination in the Covid-19 Pandemic
7.8.2 Social Care Services
7.8.2.1 Adoption and Foster Care
Service Refusal
7.8.2.2 Social Care Facilities and Benefits
7.8.2.3 Public Officials: Marriage Registrars Etc
Marriage Registrars
Other Public Officials
7.8.3 Public Education
7.8.3.1 Schools, Teachers and Parents
Religion Specific Clothing: Teachers
Religion Specific Clothing: Pupils
Prayers, Symbols and Religious Ceremonies Etc
SOGI Related Issues
7.8.3.2 Educational Content
SOGI Related Curriculum Content
7.8.3.3 Faith Schools
7.8.3.4 Colleges/Universities
LGBT Related Issues
Affirmative Action
7.8.4 Public Defence and Security
7.8.4.1 Military Issues
Service in the National Armed Forces
Transgender Military Personnel
7.8.4.2 Prisoners and Asylum Seekers
Prisoners
Asylum Seekers
7.8.5 Employment
7.8.5.1 Right of Employers to Hire and Fire
Religious Organisations
Secular Organisations
SOGI Related Issues
7.8.5.2 The Workplace
Undue Hardship
Sincerity of Belief
7.8.6 Commercial Services
7.8.6.1 Goods and Services
7.8.6.2 Religious Owners of Commercial Businesses
7.9 Conclusion
References
Chapter 8: Australia
8.1 Introduction
8.2 Principles, Doctrines and Definitions
8.2.1 Religion, Belief and Matters of Conscience
8.2.1.1 Traditional Religions
8.2.1.2 Contemporary Belief Systems and Matters of Conscience
Legitimacy and Cogency
Beliefs of Indigenous People
8.2.2 State Neutrality
8.2.2.1 Preferencing Christianity and the Christian Cultural Heritage
Indigenous People
8.2.2.2 The Religious Exemption
8.3 Conscientious Objection and Exemption: An Evolving Policy
8.3.1 Initial Exemptions
8.3.1.1 Legal Recognition of `Conscience´
8.3.1.2 An Aspect of Citizenship
Voting in National Elections
8.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy
8.3.3 Same Sex Relationships: Evolving Contemporary Policy
8.3.4 Medical Advancement: Contiguous Policy Development
8.4 From Policy to Legislation
8.4.1 Universal Legislative Constraints
8.4.1.1 Laws that Unfairly Burden a Minority
8.4.1.2 Criminal Law Constraints
Covid-19 Pandemic Constraints
8.4.2 Contemporary Government Initiatives
8.5 Legislative Framework: International and Domestic
8.5.1 International Legislation
8.5.1.1 The International Covenant on Civil and Political Rights (ICCPR)
Other
8.5.2 The Constitution and Federal Legislation
8.5.2.1 The Constitution
8.5.2.2 The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
8.5.2.3 Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth)
8.5.2.4 The Human Rights (Parliamentary Scrutiny) Act 2011
8.5.2.5 The Fair Work Act 2009 (Cth)
8.5.2.6 The Human Rights and Equal Opportunity Commission Act 1986 (Cth)
8.5.2.7 The Sex Discrimination Act 1984 (Cth)
8.5.2.8 The Racial Discrimination Act 1975 (Cth)
Other
8.6 Framework of Courts and Regulatory Bodies
8.6.1 International Courts and Regulatory Bodies
8.6.2 Domestic Courts and Regulatory Bodies
8.6.2.1 The High Court of Australia (HCA)
8.6.2.2 The Federal Court of Australia (FCA)
8.6.2.3 The Australian Human Rights Commission
8.6.2.4 The Human Rights and Equal Opportunity Commission
8.6.2.5 The Human Rights Law Centre
8.7 Fundamental Human Rights and Conscience
8.7.1 Right to Freedom of Expression
8.7.1.1 Personal Identity Issues
Indigenous People
8.7.1.2 Blasphemy and Proselytism
8.7.1.3 Whistleblowers
Disclosures and the Law
In a Public Service Context
In a National Security Context
8.7.2 Right to Freedom of Association/Assembly
8.7.2.1 Corporate Entities
8.7.3 Right to Freedom of Religion
8.7.3.1 Manifesting Beliefs
Religion Specific Clothing, Symbols, Customs Etc
8.7.3.2 Indigenous Beliefs
Affirmative Action
8.8 Conscientious Objection and Equality: Contemporary Caselaw
8.8.1 Public Health
8.8.1.1 Abortion, Contraception IVF and Surrogacy
Abortion
Contraception
IVF and Surrogacy
SOGI Related Health Issues
8.8.1.2 Medical Practitioners and Assisted Death
Suicide
Refusing Medical Treatment
Medically Assisted Death
8.8.1.3 Blood and Organ Donations
8.8.1.4 Vaccination
Law, Government and Vaccination in the Covid 19 Pandemic
8.8.2 Social Care Services
8.8.2.1 Adoption and Foster Care
Service Refusal
8.8.2.2 Social Care Facilities and Benefits
8.8.2.3 Public Officials: Marriage Registrars Etc
Marriage Registrars
Other Public Officials
8.8.3 Public Education
8.8.3.1 Schools, Teachers and Parents
Religion Specific Clothing: Teachers
Religion Specific Clothing: Pupils
Prayers, Symbols and Religious Ceremonies Etc
Indigenous Children Issues
SOGI Related Issues
8.8.3.2 Educational Content
SOGI Related Curriculum Content
8.8.3.3 Faith Schools
8.8.3.4 Colleges/Universities
LGBT Related Issues
Affirmative Action
8.8.4 Public Defence and Security
8.8.4.1 Military Issues
Service in the National Armed Forces
Transgender Military Personnel
8.8.4.2 Prisoners and Asylum Seekers
Prisoners
Asylum Seekers
8.8.5 Employment
8.8.5.1 Right of Employers to Hire and Fire
Religious Organisations
Secular Organisations
SOGI Related Issues
8.8.5.2 The Workplace
Undue Hardship
Sincerity of Belief
8.8.6 Commercial Services
8.8.6.1 Goods and Services
8.8.6.2 Religious Owners of Commercial Businesses
8.9 Conclusion
References
Chapter 9: New Zealand
9.1 Introduction
9.2 Principles, Doctrines and Definitions
9.2.1 Religion, Belief and Matters of Conscience
9.2.1.1 Traditional Religions
9.2.1.2 Contemporary Belief Systems and Matters of Conscience
Legitimacy and Cogency
Beliefs of Indigenous People
9.2.2 State Neutrality
9.2.2.1 Preferencing Christianity and the Christian Cultural Heritage
Indigenous People
9.2.2.2 The Religious Exemption
9.3 Conscientious Objection and Exemption: An Evolving Policy
9.3.1 Initial Exemptions
9.3.1.1 Legal Recognition of `Conscience´
9.3.1.2 An Aspect of Citizenship
9.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy
9.3.3 Same Sex Relationships: Evolving Contemporary Policy
9.3.4 Medical Advancement: Contiguous Policy Development
9.4 From Policy to Legislation
9.4.1 Universal Legislative Constraints
9.4.1.1 Laws That Unfairly Burden a Minority
9.4.1.2 Criminal Law Constraints
Covid-19 Pandemic Constraints
9.4.2 Contemporary Government Initiatives
9.5 Legislative Framework: International and Domestic
9.5.1 International Legislation
9.5.1.1 The International Covenant on Civil and Political Rights (ICCPR)
9.5.2 The Constitution and Federal Legislation
9.5.2.1 The Constitution
The Treaty of Waitangi
9.5.2.2 The Abortion Legislation Act 2020
9.5.2.3 The Privacy Act 2020
9.5.2.4 The End of Life Choice Act 2019
9.5.2.5 The Marriage (Definition of Marriage) Amendment Act 2013
9.5.2.6 The Human Rights Amendment Act 2001
9.5.2.7 The Employment Relations Act 2000 (ERA)
9.5.2.8 The Births, Deaths and Marriages Registration Act 1995
9.5.2.9 The Human Rights Act 1993 (HRA)
9.5.2.10 The New Zealand Bill of Rights Act 1990 (NZBORA)
9.5.2.11 The Constitution Act 1986
9.5.2.12 The Race Relations Act 1971 (RRA)
Other
9.6 Framework of Courts and Regulatory Bodies
9.6.1 International Courts and Regulatory Bodies
9.6.2 Domestic Courts and Regulatory Bodies
9.6.2.1 The Supreme Court
9.6.2.2 The Court of Appeal
9.6.2.3 The Human Rights Commission (HRC)
9.6.2.4 The Human Rights Review Tribunal (HRRT)
9.6.2.5 The Office of Human Rights Proceedings
9.6.2.6 The Employment Relations Authority
9.6.2.7 Waitangi Tribunal
9.7 Fundamental Human Rights and Conscience
9.7.1 Right to Freedom of Expression
9.7.1.1 Personal Identity Issues
Indigenous People
9.7.1.2 Blasphemy and Proselytism
9.7.1.3 Whistleblowers
Disclosures and the Law
In a Public Service Context
In a National Security Context
9.7.2 Right to Freedom of Association/Assembly
9.7.2.1 Corporate Entities
9.7.3 Right to Freedom of Religion
9.7.3.1 Manifesting Beliefs
Religion Specific Clothing, Symbols, Customs etc
9.7.3.2 Indigenous Beliefs
Affirmative Action
9.8 Conscientious Objection and Equality: Contemporary Caselaw
9.8.1 Public Health
9.8.1.1 Abortion, Contraception IVF and Surrogacy
Abortion
Contraception
IVF and Surrogacy
SOGI Related Health Issues
9.8.1.2 Medical Practitioners and Assisted Death
Suicide
Refusing Medical Treatment
Medically Assisted Death
9.8.1.3 Blood and Organ Donations
9.8.1.4 Vaccination
Law, Government and Vaccination in the Covid-19 Pandemic
9.8.2 Social Care Services
9.8.2.1 Adoption and Foster Care
Service Refusal
9.8.2.2 Social Care Facilities and Benefits
9.8.2.3 Public Officials: Marriage Registrars etc
Marriage Registrars
Other Public Officials
9.8.3 Public Education
9.8.3.1 Schools, Teachers and Parents
Religion Specific Clothing: Teachers
Religion Specific Clothing: Pupils
Prayers, Symbols and Religious Ceremonies etc
Indigenous Children Issues
SOGI Related Issues
9.8.3.2 Educational Content
SOGI Related Curriculum Content
9.8.3.3 Faith Schools
9.8.3.4 Colleges/Universities
LGBT Related Issues
Affirmative Action
9.8.4 Public Defence and Security
9.8.4.1 Military Issues
Service in the National Armed Forces
Transgender Military Personnel
9.8.4.2 Prisoners and Asylum Seekers
Prisoners
Asylum Seekers
9.8.5 Employment
9.8.5.1 Right of Employers to Hire and Fire
Religious Organisations
Secular Organisations
SOGI Related Issues
9.8.5.2 The Workplace
Undue Hardship
Sincerity of Belief
9.8.6 Commercial Services
9.8.6.1 Goods and Services
9.8.6.2 Religious Owners of Commercial Businesses
9.9 Conclusion
References
Part IV: Equality, Exemption and Democracy
Chapter 10: Themes of Jurisdictional Commonality and Difference
10.1 Introduction
10.2 Principles, Policy, and Legislation
10.2.1 Principles
10.2.1.1 `Religion´ and Contemporary Forms of `Belief´
Traditional Religions
Contemporary Belief Systems and Matters of Conscience
Legitimacy and Cogency
Proportionality
Beliefs of Indigenous People
10.2.1.2 State Neutrality
10.2.1.3 The Religious Exemption
10.2.2 Policy
10.2.2.1 Origins: Initial Exemptions
Legal Recognition of `Conscience´
An Aspect of Citizenship
10.2.2.2 Evolving Contemporary Policy
Abortion
Same Sex Marriage
Medically Assisted Death
10.2.3 Legislation
10.2.3.1 International Law
10.2.3.2 Domestic Law
10.3 Conscientious Objection and Fundamental Human Rights
10.3.1 Freedom of Expression
10.3.1.1 Identity
10.3.1.2 Blasphemy and Proselytism
10.3.1.3 Whistleblowers
10.3.2 Freedom of Association/Assembly
10.3.2.1 Corporate Entities
10.3.3 Freedom of Religion
10.3.3.1 Manifesting Beliefs
10.3.3.2 Indigenous Beliefs
10.3.3.3 Affirmative Action
10.4 Conscientious Objection and Equality
10.4.1 Public Health
10.4.1.1 Abortion, Contraception, IVF and Surrogacy
Abortion
Contraception
IVF and Surrogacy
SOGI Related Health Issues
10.4.1.2 Medical Practitioners and Assisted Death
10.4.1.3 Blood and Organ Donations
10.4.1.4 Vaccination
Law, Government and Vaccination in the Covid-19 Pandemic
10.4.1.5 Refusal and Referral
Abortion
Vaccination Refusal
10.4.2 Social Care Services
10.4.2.1 Public Benefit Service Providers
10.4.3 Public Education
10.4.3.1 Home Schooling
10.4.3.2 Schools, Teachers and Parents
Curriculum Content
Religion Specific Clothing, Symbols etc
Indigenous Children and State Education
10.4.3.3 Faith Schools
10.4.3.4 Colleges/Universities
LGBT Related Issues
Affirmative Action
10.4.4 Public Defence and Security
10.4.4.1 Military Issues
10.4.4.2 Prisoners and Asylum Seekers
10.4.5 Employment
10.4.5.1 Right of Employers to Hire and Fire
Religious Organisations
Secular Organisations
SOGI Related Issues
10.4.5.2 The Workplace
10.4.6 Commercial Services
10.4.6.1 Goods and Services
10.5 Conclusion
References
Chapter 11: A Democratic and Diverse Society: Balancing Equality and Exemption
11.1 Introduction
11.2 Cultural Heritage and Pluralism
11.2.1 Pluralism
11.2.1.1 Religious Pluralism
11.2.2 Diversity
11.2.2.1 State Approach to Religion and Cultural Heritage
11.2.2.2 The Culture Wars and Jurisdictional Stratification of Morality Issues
11.2.2.3 Contemporary Social Constructs
11.2.3 Conscientious Objection in a Non-Christian Context
11.2.3.1 Non-Christian Religious Beliefs
11.2.3.2 Indigenous People
11.3 Democracy and Dissent
11.3.1 Dissent and Development
11.3.1.1 Cancel Culture etc
11.3.2 Religion and Dissent
11.3.2.1 Continued State Preferencing of Traditional Culture/Religion
11.3.2.2 Dissent and Manifesting Religion/Belief
11.3.3 Reform and Dissent
11.3.3.1 Emerging Trends
11.4 Democracy and the Contemporary State/Citizen Relationship
11.4.1 Citizenship
11.4.1.1 Contemporary Citizenship
11.4.2 Contemporary Citizenship and Conscientious Objection
11.4.2.1 Citizenship, Minority Communities and Conscientious Objection
11.5 The Public/Private Balance and the Proportionality Principle
11.5.1 Public/Private Interests
11.5.1.1 Religion and Equality
11.5.1.2 Religion and Exemption
11.5.1.3 Islands of Exclusivity
11.5.2 Public Interest and Conscientious Objection
11.5.2.1 State Neutrality
11.5.2.2 The Politicisation of Conscientious Objection
11.5.3 Private Interest and Conscientious Objection
11.5.3.1 Professional Bodies
11.5.4 Balancing Public/Private Interests: The Proportionality Principle
11.5.4.1 The Proportionality Principle
11.5.4.2 Conscientious But Not Determinative
11.5.4.3 Exemption: All or Nothing
11.5.4.4 Compensation
11.5.4.5 A Principle Commonly Applied by the Judiciary
11.6 Conclusion
References
Chapter 12: Conclusion
12.1 State/Citizen, Covid-19 and Conscientious Objection
12.2 The State/Citizen Relationship
12.2.1 The State
12.2.2 Citizen and Citizenship
12.3 Public Health, Conscientious Objection and Lessons from the Covid-19 Pandemic
12.3.1 Lockdown
12.3.2 Vaccination
References
Index

Citation preview

Ius Gentium: Comparative Perspectives on Law and Justice 98

Kerry O'Halloran

Conscientious Objection Dissent and Democracy in a Common Law Context

Ius Gentium: Comparative Perspectives on Law and Justice Volume 98

Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA James Maxeiner, University of Baltimore, Baltimore, MD, USA Editorial Board Members Myroslava Antonovych, Kyiv-Mohyla Academy, Kyiv, Ukraine Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil Jasna Bakšic-Muftic, University of Sarajevo, Sarajevo, Bosnia and Herzegovina David L. Carey Miller, University of Aberdeen, Aberdeen, UK Loussia P. Musse Félix, University of Brasilia, Federal District, Brazil Emanuel Gross, University of Haifa, Haifa, Israel James E. Hickey Jr., Hofstra University, South Hempstead, NY, USA Jan Klabbers, University of Helsinki, Helsinki, Finland Cláudia Lima Marques, Federal University of Rio Grande do Sul, Porto Alegre, Brazil Aniceto Masferrer, University of Valencia, Valencia, Spain Eric Millard, West Paris University, Nanterre Cedex, France Gabriël A. Moens, Curtin University, Perth, Australia Raul C. Pangalangan, University of the Philippines, Quezon City, Philippines Ricardo Leite Pinto, Lusíada University of Lisbon, Lisboa, Portugal Mizanur Rahman, University of Dhaka, Dhaka, Bangladesh Keita Sato, Chuo University, Tokyo, Japan Poonam Saxena, University of Delhi, New Delhi, India Gerry Simpson, London School of Economics, London, UK Eduard Somers, University of Ghent, Gent, Belgium Xinqiang Sun, Shandong University, Shandong, China Tadeusz Tomaszewski, Warsaw University, Warsaw, Poland Jaap de Zwaan, Erasmus University Rotterdam, Rotterdam, The Netherlands

Ius Gentium is a book series which discusses the central questions of law and justice from a comparative perspective. The books in this series collect the contrasting and overlapping perspectives of lawyers, judges, philosophers and scholars of law from the world's many different jurisdictions for the purposes of comparison, harmonisation, and the progressive development of law and legal institutions. Each volume makes a new comparative study of an important area of law. This book series continues the work of the well-known journal of the same name and provides the basis for a better understanding of all areas of legal science. The Ius Gentium series provides a valuable resource for lawyers, judges, legislators, scholars, and both graduate students and researchers in globalisation, comparative law, legal theory and legal practice. The series has a special focus on the development of international legal standards and transnational legal cooperation.

More information about this series at https://link.springer.com/bookseries/7888

Kerry O’Halloran

Conscientious Objection Dissent and Democracy in a Common Law Context

Kerry O’Halloran Ballycastle, UK

ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-030-97647-7 ISBN 978-3-030-97648-4 (eBook) https://doi.org/10.1007/978-3-030-97648-4 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Dedicated to my sister Maeve (07.01.50–18.08.21) Thank you for the days. . .. . .

Preface

Beginning with the paradigm of conscientious objection as initially represented some centuries ago—in the swearing of oaths, exemption from military service and mandatory vaccination—this book traces its contiguous development into the now familiar areas—abortion, the death penalty and same-sex relationships—and on into contemporary issues—including genetic modification of food, gender identity, medically assisted death and its relevance to the COVID-19 pandemic—to consider possible future parameters and, indeed, to question its viability. It casts a wide net. The catch is varied. The taxonomy of conscientious objection accommodates matters of life and death: abortion, drone strikes and genetically edited embryos. It encompasses identity politics: sexual orientation and gender identity (SOGI), trans issues, personal and ethnic identity and the authenticity of indigenous culture. It stretches to include symbolic matters such as the baking of cakes, school prayers and the wearing of a crucifix or burqa. It involves a range of matters that may or may not constitute a conscientious objection: acts of discrimination, the revelations of whistleblowers or refusal to use unisex bathrooms. Its shelf life is also variable. Matters once classified socially and legally as conscionable—the use of seat belts, for example—can lose that status over time, while others—wearing face masks, perhaps—can aquire it. Matters can be interpreted differently. To some extent conscientiousness lies in the eye of the objector: vegetarianism or halal meat, wearing a burqa or hijab, objecting to a reference to God in the national anthem; all may or may not meet that definition depending largely on subjective perception. Interpreting abortion as an act of killing is qualitatively distinct from interpreting homosexuality as unnatural. Moreover, the manner and effect of expressing objections in the age of the Internet—where the most powerful leader of the democratic world can use and lose the right to freedom of expression at the discretion of Twitter while the baking of a cake can have a global resonance—has become very complex. The differential in weighting of the disparate matters to be found in this catch-all approach clearly presents challenges: a baker is a different class of person from a doctor or a drone operator, and the significance of their associated conscientious objections has very different impacts within their respective frames of reference, for vii

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themselves and for the values of a democratic society. A decision not to engage with a process that ends lives is in a wholly different category from one to bake a cake or wear a burqa. In a COVID-19 context, the difference in scale between the care worker who decides not to be vaccinated and the Prime Minister who hesitates to impose a population lockdown is huge, always assuming that these decisions are similarly rooted in religion or other forms of belief. There are fundamental differences in the private and public implications of conscientiously objecting. These are each dense subjects in their own right, many meriting their own book, but in order to sweep up most of which the author considers to be relevant to the subject, and to do so within the usual publisher imposed constraints, a high level of generalisation is necessary. This can only be achieved at the cost of failing to give many matters the full consideration they deserve. A common and defining factor determining where the net is cast and what is to be found in it is that it is targeted at objectors whose beliefs both align with their objection and are the driving force for it: they would feel their beliefs to be violated if they did not act on this matter in accordance with their conscience. There are at least two difficulties here. Firstly, the range of beliefs now legally recognised and available to ground objections—from Christianity and Islam to lesbian witches and the Jedi—is much greater than formerly, as is the corresponding range of matters that may now be perceived by believers as unconscionable. Secondly, the dissent generated may as well find expression in acts of civil disobedience, whistleblowing or social activism—Black Lives Matter, Extinction Rebellion, etc.—as in conscientious objection. This complexity gives rise to problems in differentiating the latter from all other forms of dissent, and in practice they often overlap. This book also looks to the future. It suggests that as conscientious objections become more numerous, over an ever-broadening spectrum of human activity, this traditionally most concrete of legal concepts, now spread evermore thinly, is becoming steadily more amorphous and debate as to its validity can only grow. This is clearly set to happen in medicine as advances in medical science accelerate and opposition from religious organisations and their adherents hardens. Embryonic stem cell therapies, genetic selection, gene editing bio-enhancement and gender modification are only some of the areas where science pushes forward in the face of objections from those who fear eugenic experimentation and question the human right to interfere with ‘the stuff of life’. In fact, a concern for the consequences of this rapidly growing phenomenon—the claim to a right of exemption from a civic or professional duty on the grounds of conscientious objection—currently particularly evident in the medical field, but also as regards gender and same-sex matters, and more so in the USA than elsewhere— provides the primary impetus for this book. The growing number of statutory exemptions available to public health-care service providers and others permitting them to withdraw from service provision—e.g. abortion procedures, same-sex adoption and foster care and medically assisted death—on the grounds of religion or belief, must be concerning for all with an interest in the future liberalism of our democratic societies. It is rapidly becoming a matter of acute concern in the context of the ongoing COVID-19 pandemic. There are real dilemmas entailed in balancing

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a private right of conscientious objection to vaccination against a public right to health and safety and privileging religion/belief/conscience when balancing the needs for equality and diversity in a democratic society. These issues are exercising all the jurisdictions considered in Part III and producing tensions that risk further exacerbating the fractious culture wars, leading to greater polarisation and social fragmentation. At the heart of all this is the matter of public/private balance: when and why does an individual (particularly a public service provider, but even a user) or organisation (religious, or religion affiliated, usually) have a right to dissent—to challenge or deny an established public good—on the grounds of private religion/belief/conscience (as distinguished from any other grounds of objection)? While this is most pressing where the conflict between private conscience and the public good arises in relation to a matter governed by a statutory legal duty, it is also relevant outside that framework and can be especially challenging in areas where the law is trending towards recognising newly emerging social norms. This book considers the impact of an increasing pluralism upon the traditional Christian cultural foundations of the common law nations. It acknowledges and examines the importance of dissent— Black Lives Matter, Extinction Rebellion, etc.—and the need to accommodate and facilitate diversity, but it also recognises the risks accompanying dissent: specifically, it considers the costs to the health and safety of the majority if a minority are permitted to opt out of wearing masks, refuse to abide by track-and-trace rules or avoid vaccinations, on the grounds of conscientious objection, in times of a global pandemic. It draws attention to some of the potential consequences of manifesting dissent by opting out from public service delivery: the local stripping out of specific service availability (e.g. abortion services in Texas), resulting in some degree of population movement as established democratic civil rights are locally negated (reproductive rights, LGBT rights, right to health protection), leading to the possibility of society being fragmented into a geographic patchwork of regions where some citizens are branded as conservative/reactionary and others as progressive, fuelling the culture wars, with profound implications for a coherent democratic society. It considers the possible impact upon the citizen/State relationship. Part I of the book is in two chapters—Conscience and Conscientiousness: Principles, Concept, and Parameters and Dissent and the Common Law Nations, Pluralism and Objecting Conscientiously. The first explores the background, beginning with the developmental history, a tentative definition of ‘conscientiousness’, the relevance of the doctrine of ‘State neutrality’, its relationship with cultural heritage and the significance of secularism. It examines the meaning of ‘conscientious objection’ and how this relates to rights of autonomy; it analyses ‘conscience’, exploring its roots in ethics and morality. It examines what constitutes ‘religion’, ‘beliefs and ‘conscience’. It considers the role of the ‘conscientious objector’ and what distinguishes it from that of a ‘whistleblower’ or social activist, the relationship between authority and the right to object, the distinctive characteristics of ‘conscientiousness’ and how this was initially articulated by the courts. A brief historical narrative provides an overview that tracks the role of the principle from early application in relation to the taking of oaths and armed combat to an evolving policy

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regarding, successively, matters such as vaccinations, abortion, LGBT and trans gender issues to its current relevance in a health and social care context. The second deals with the circumstances Immanuel Kant drew attention to when he warned that for those whose dissent emanates from the beliefs of an historical faith there is ‘the danger of disobedience to a human duty which is certain in and of itself’ and that to do so would be ‘unconscientious’.1 It provides a brief overview of the Christian common law background of the Part III jurisdictions and explores the importance of their current diverse pluralistic cultural context against that background; it examines the right of minorities to express dissent in a democracy, boycott, whistleblowing, Ellsberg and the ‘Pentagon papers’, Wikileaks, etc. and Greta Thunberg and activists challenging legislation in court (homosexuality, abortion, same-sex marriage, etc.). It considers what is meant by ‘conscience’ and ‘morality’ with references to Kant, Thoreau and others and examines the duty to act or not to act according to conscience (Nürnberg, etc.). It considers and balances various movements like Friends of the Earth, Human Rights Watch with Extinction Rebellion and BLM, etc. It considers the law and morality governing antivaccination in a pandemic. It argues that the right to dissent—and the ancillary right to conscientious objection—can be crucial for asserting and preserving the cultural identity of minority groups, but that a counterbalance is also needed if social cohesion is to be sustained. Part II consists of one chapter—The International Legal Framework For Conscientious Objection and Themes For Comparative Jurisdictional Analysis. Begining with an overview of the relevant international legal framework, it identifies the main provisions as they originated in the Universal Declaration of Human Rights (UDHR) and were thereafter developed in instruments such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), before turning to outline the structure of related international judicial and regulatory bodies. It then focuses on the principle of conscientious objection, its legal definition and interpretation. It considers how this principle relates to those of dissent and equality. It establishes a thread of themes arising from international case law to be applied in identifying, justifying and structuring the agenda of issues forming the basis for the jurisdictional comparative analysis. Part III, in six chapters—dealing with England and Wales, Ireland, the USA, Canada, Australia and New Zealand—examines the contours of the conflict between conscientious objection and equality/non-discrimination legislation as experienced in those common law jurisdictions. Each chapter begins with a brief overview of the historical background, leading up to the current social context shaping the role for conscientious objection issues. It considers the relevant principles, policy and law. Starting with the principle itself, its legal definition and interpretation, it then traces the related policy developments before setting out the current international and domestic legislative framework, noting the ratification of relevant international treaties, conventions or protocols and identifying the main

1

The Conflict of the Faculties (1798), University of Nebraska Press, 1992 at p. 175.

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judicial and regulatory bodies. It then moves on to examine the functioning of conscientious objection in the context of relevant contemporary domestic law. This central section focuses on the intersect between conscientious objection and the fundamental human rights: freedom of expression, association/assembly and religion. Finally, it then systematically examines in turn a sequence of distinct themes relating to the interface between conscientious objection and equality and non-discrimination law (identified in Part II) as addressed in domestic case law, assessing any significant trends and governing principles. Part III is in two chapters—Themes of Jurisdictional Commonality and Difference and A Democratic and Diverse Society: Balancing Equality and Exemption— which pick up on the thesis that the principle of conscientious objection, being contingent upon the current legal interpretation of ‘belief’ as essentially a subjective matter, has potentially a greatly amplified role to play than that traditionally assigned to it. With this enhanced capacity comes a risk that it may be misused in ways that could threaten the workings of a democratic society. The penultimate chapter, as the title suggests, identifies and undertakes a comparative analysis of themes emerging from the jurisdictional survey, while the final chapter reflects on where we have come from in terms of benign State-sponsored health and safety programmes (chlorine in swimming pools, folic acid in bread, seat belts, etc.) to a more intrusive State regulatory role (CCTV surveillance, gene editing/IVF, GM foods, etc.). It considers the application of conscientious objection in relation to matters such as immunisation vaccines. It reflects on the potential for the principle to undermine the integrity and autonomy of professions and factionalise professionals and society. Ballycastle, UK Autumn 2021

Kerry O’Halloran

Acknowledgements

This book was built on the foundations laid by earlier publications including The Church of England: Charity Law and Human Rights,2 Religion, Charity and Human Rights,3 Religious Discrimination and Cultural Context,4 Human Rights, Religion and International Law5 and State Neutrality: the Sacred, the Secular and Equality Law.6 Given the not dissimilar subject matter and related case law, focused on some of the same jurisdictions, there is inevitably a degree of overlap and I thank the publishers concerned for their understanding. Particular thanks are due to those who offered comment on draft chapters: Chris Cowley7 (concepts); Paul Weller8 (England and Wales); Gerry Whyte9 (Ireland); Fred Gedicks10 (USA); Kimberley Brownlee11 and David Novak12 (Canada); Nathan Emmerich13 (Australia); and Stephen Price14 (New Zealand). It was a privilege to work with you; your thoughtful contributions and encouragement have meant a lot—this book and its author would have suffered without them.

2

Springer, 2014. Cambridge University Press, 2014. 4 Cambridge University Press, 2018. 5 Routledge, 2019. 6 Cambridge University Press, 2021. 7 Associate Dean, College of Social Sciences & Law, University College Dublin, Ireland. 8 Research Fellow in Religion and Society and Associate Director (UK) Oxford Centre for Christianity and Culture, University of Oxford, England. 9 Professor of Law, School of Law, Trinity College Dublin, Ireland. 10 Guy Anderson Chair & Professor of Law, Brigham Young University Law School, USA. 11 Professor of Philosophy, University of British Columbia, Canada. 12 Professor of Law, University of Toronto, Canada. 13 Senior Lecturer, Medical School, Australian National University, Australia. 14 Scholar in Residence, Faculty of Law, Victoria University of Wellington, New Zealand. 3

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Acknowledgements

Others who offered advice and support along the way include John Adenitire,15 Frank Cranmer,16 Kath Hall,17 Anne O’Rourke,18 A.J. Brown,19 Dean Knight20 and Gerald Neuman.21 I am also mindful of the family members, friends and colleagues whose advice, contributions and support along the way have been invaluable. I am very thankful to Springer for commissioning the book and for the editorial diligence that has seen it through to completion. Responsibility for any mistakes, omissions, inconsistencies or other faults, and for all views expressed, must rest exclusively with me. As always, Elizabeth, I am hugely grateful to you for everything, including the sacrifices you made that allowed me to get this done.

15

Strategic Lecturer in Law, School of Law, Queen Mary, University of London, England. Research Fellow at the Centre for Law and Religion, Cardiff and Director, Central Lobby Consultants, London, England. 17 Associate Professor, College of Law, Australian National University, Australia. 18 Lecturer, Department of Business Law and Taxation, Monash University, Australia. 19 Professor, Centre for Governance & Public Policy, Griffith University, Australia. 20 Associate Professor, Victoria University of Wellington, New Zealand. 21 J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, also Director of the Human Rights Program, at Harvard Law School, USA. 16

Contents

Part I 1

2

State, Citizen and Dissent

Conscience and Conscientiousness: Principles, Concepts, and Parameters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Principles and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 Religion, Belief and Matters of Conscience . . . . . . . . 1.2.2 State Neutrality Towards Religion and Belief . . . . . . . 1.3 Conscientious Objection: Concept, Interpretation and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Objections: Conscientious and Otherwise . . . . . . . . . . 1.3.2 Objections: Conscientiousness and the Law . . . . . . . . 1.4 Parameters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.1 Origins: Exemption on Grounds of Religious Belief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.2 Broadening the Parameters: The De-Criminalisation of Abortion, Homosexuality and Prostitution . . . . . . . 1.4.3 Extending the Parameters by Analogy: Same Sex Issues Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dissent and the Common Law Nations: Pluralism and Objecting Conscientiously . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Common Law, Christianity and Culture: A Shared History and a Shared Basis for Dissent . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 The Common Law Jurisdictions: A Shared Cultural Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Democracy and the Common Law Nations . . . . . . . . . . . . . . . 2.3.1 Democratic Society . . . . . . . . . . . . . . . . . . . . . . . . .

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3 3 4 5 12

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15 15 22 25

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25

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27

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30 32 33

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35 35

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36

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36 42 42 xv

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2.3.2 Dissent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Civil Society, Citizenship, Pluralism and the Law . . . . . . . . . . 2.4.1 Civil Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Law and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.2 Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.3 Rights to Private Life and to Social Participation . . . . 2.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4

Part II 3

. . . . . . . . .

44 48 48 53 54 55 56 60 61

Conscientious Objection and Contemporary International Law

The International Legal Framework for Conscientious Objection and Themes for Comparative Jurisdictional Analysis . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Framework of International Instruments . . . . . . . . . . . . . . . . . . 3.2.1 The Universal Declaration of Human Rights (UDHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 The European Convention on Human Rights (ECHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 The International Covenant on Civil and Political Rights (ICCPR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 The International Covenant on Economic, Social and Cultural Rights (ICESCR) . . . . . . . . . . . . . . . . . . . . . . 3.2.5 The UN Convention on the Rights of the Child (UN CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.6 The Charter of Fundamental Rights of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.7 The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine of 1997 (the Oviedo Convention) . . . . . . . . . . . . . . . . . . . . . . . 3.2.8 The EU Charter of Fundamental Rights . . . . . . . . . . . . 3.2.9 The United Nations Declaration on the Rights of Indigenous Peoples . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.10 Convention Relating to the Status of Refugees . . . . . . . 3.2.11 The American Convention on Human Rights . . . . . . . . 3.3 Framework of Courts and Regulatory Bodies . . . . . . . . . . . . . . 3.3.1 Courts, Commissions and Other Regulatory Bodies . . . 3.3.2 Monitoring and Review Procedures . . . . . . . . . . . . . . . 3.4 The Principle of Conscientious Objection: Legal Definition and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 Human Rights and Conscientious Objection . . . . . . . . . 3.4.2 Freedom of Belief/Conscience . . . . . . . . . . . . . . . . . . . 3.4.3 State Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65 65 66 66 67 69 69 70 70

70 70 71 72 72 72 72 76 77 77 80 82

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3.5

Fundamental Human Rights as Grounds for State Interference in Matters of Belief/Conscience/Religion in a Democratic Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.1 The ECtHR and a ‘Democratic Society’ . . . . . . . . . . . . 3.5.2 Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . 3.5.3 Freedom of Association/Assembly . . . . . . . . . . . . . . . . 3.5.4 Freedom of Religion . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Conscientious Objection and Equality Caselaw . . . . . . . . . . . . . 3.6.1 Public Service Providers . . . . . . . . . . . . . . . . . . . . . . . 3.6.2 Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.3 Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.4 Public Officials and Justice Issues . . . . . . . . . . . . . . . . 3.6.5 Citizenship and Conscientious Objection . . . . . . . . . . . 3.6.6 Private Service Provision . . . . . . . . . . . . . . . . . . . . . . 3.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part III 4

85 85 87 88 89 91 91 92 98 102 105 107 109 110

Jurisdictional Survey

England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Principles, Doctrines and Definitions . . . . . . . . . . . . . . . . . . . . 4.2.1 Religion, Belief and Matters of Conscience . . . . . . . . . 4.2.2 State Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Conscientious Objection and Exemption: An Evolving Policy . . 4.3.1 Initial Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Same Sex Relationships: Evolving Contemporary Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 Medical Advancement: Contiguous Policy Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 From Policy to Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Universal Legislative Constraints . . . . . . . . . . . . . . . . 4.4.2 Contemporary Government Initiatives . . . . . . . . . . . . . 4.5 Legislative Framework: International and Domestic . . . . . . . . . . 4.5.1 International Legislation . . . . . . . . . . . . . . . . . . . . . . . 4.5.2 Domestic Legislation . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Framework of Courts and Regulatory Bodies . . . . . . . . . . . . . . 4.6.1 International Courts and Regulatory Bodies . . . . . . . . . 4.6.2 Domestic Courts and Regulatory Bodies . . . . . . . . . . . 4.7 Fundamental Human Rights and Conscience . . . . . . . . . . . . . . . 4.7.1 Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . 4.7.2 Right to Freedom of Association/Assembly . . . . . . . . . 4.7.3 Right to Freedom of Religion . . . . . . . . . . . . . . . . . . .

113 113 114 114 119 121 121 123 123 125 126 126 128 128 128 129 132 132 133 133 133 137 137

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4.8

Conscientious Objection and Equality: Contemporary Caselaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.1 Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.2 Social Care Services . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.3 Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.4 Public Defence and Security . . . . . . . . . . . . . . . . . . . 4.8.5 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.6 Commercial Services . . . . . . . . . . . . . . . . . . . . . . . . 4.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

. . . . . . . . .

140 140 148 152 158 160 164 166 167

Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Principles, Doctrines and Definitions . . . . . . . . . . . . . . . . . . . . 5.2.1 Religion, Belief and Matters of Conscience . . . . . . . . . 5.2.2 State Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Conscientious Objection and Exemption: An Evolving Policy . . . 5.3.1 Initial Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Same Sex Relationships: Evolving Contemporary Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Medical Advancement: Contiguous Policy Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 From Policy to Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Universal Legislative Constraints . . . . . . . . . . . . . . . . 5.4.2 Contemporary Government Initiatives . . . . . . . . . . . . . 5.5 Legislative Framework: International and Domestic . . . . . . . . . . 5.5.1 International Legislation . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 The Constitution and Domestic Legislation . . . . . . . . . 5.6 Framework of Courts and Regulatory Bodies . . . . . . . . . . . . . . 5.6.1 International Courts and Regulatory Bodies . . . . . . . . . 5.6.2 Domestic Courts and Regulatory Bodies . . . . . . . . . . . 5.7 Fundamental Human Rights and Conscience . . . . . . . . . . . . . . . 5.7.1 Right to Freedom of Expression . . . . . . . . . . . . . . . . . 5.7.2 Right to Freedom of Association/Assembly . . . . . . . . . 5.7.3 Right to Freedom of Religion . . . . . . . . . . . . . . . . . . . 5.8 Conscientious Objection and Equality: Contemporary Caselaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8.1 Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8.2 Social Care Services . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8.3 Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8.4 Public Defence and Security . . . . . . . . . . . . . . . . . . . . 5.8.5 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8.6 Commercial Services . . . . . . . . . . . . . . . . . . . . . . . . .

169 169 170 170 172 174 174 176 179 180 181 181 184 184 184 185 188 189 190 190 190 193 194 196 197 207 209 219 221 226

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xix

5.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 6

7

United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Principles, Doctrines and Definitions . . . . . . . . . . . . . . . . . . . . 6.2.1 Religion, Belief and Matters of Conscience . . . . . . . . . 6.2.2 State Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Conscientious Objection and Exemption: An Evolving Policy . . . 6.3.1 Initial Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Same Sex Relationships: Evolving Contemporary Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.4 Medical Advancement: Contiguous Policy Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 From Policy to Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 Universal Legislative Constraints . . . . . . . . . . . . . . . . 6.4.2 Contemporary Government Initiatives . . . . . . . . . . . . . 6.5 Legislative Framework: International and Domestic . . . . . . . . . . 6.5.1 International Legislation . . . . . . . . . . . . . . . . . . . . . . . 6.5.2 The Constitution and Federal Legislation . . . . . . . . . . . 6.6 Framework of Courts and Regulatory Bodies . . . . . . . . . . . . . . 6.6.1 International Courts and Regulatory Bodies . . . . . . . . . 6.6.2 Domestic Courts and Regulatory Bodies . . . . . . . . . . . 6.7 Fundamental Human Rights and Conscience . . . . . . . . . . . . . . . 6.7.1 Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . 6.7.2 Right to Freedom of Association/Assembly . . . . . . . . . 6.7.3 Right to Freedom of Religion . . . . . . . . . . . . . . . . . . . 6.8 Conscientious Objection and Equality: Contemporary Caselaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8.1 Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8.2 Social Care Services . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8.3 Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8.4 Public Defence and Security . . . . . . . . . . . . . . . . . . . . 6.8.5 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8.6 Commercial Services . . . . . . . . . . . . . . . . . . . . . . . . . 6.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Principles, Doctrines and Definitions . . . . . . . . . . . . . . . . . . . 7.2.1 Religion, Belief and Matters of Conscience . . . . . . . . 7.2.2 State Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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231 231 232 232 236 241 241 243 246 248 249 249 251 252 253 253 257 257 258 259 259 265 267 271 272 282 286 293 297 303 304 304 307 307 308 309 313

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7.3

8

Conscientious Objection and Exemption: An Evolving Policy . . . 7.3.1 Initial Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Same Sex Relationships: Evolving Contemporary Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 Medical Advancement: Contiguous Policy Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 From Policy to Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Universal Legislative Constraints . . . . . . . . . . . . . . . . 7.4.2 Contemporary Government Initiatives . . . . . . . . . . . . . 7.5 Legislative Framework: International and Domestic . . . . . . . . . . 7.5.1 International Legislation . . . . . . . . . . . . . . . . . . . . . . . 7.5.2 Domestic Constitution and Legislation . . . . . . . . . . . . . 7.5.3 Other Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Framework of Courts and Regulatory Bodies . . . . . . . . . . . . . . 7.6.1 International Courts and Regulatory Bodies . . . . . . . . . 7.6.2 Domestic Courts and Regulatory Bodies . . . . . . . . . . . 7.7 Fundamental Human Rights and Conscience . . . . . . . . . . . . . . . 7.7.1 Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . 7.7.2 Right to Freedom of Association/Assembly . . . . . . . . . 7.7.3 Right to Freedom of Religion . . . . . . . . . . . . . . . . . . . 7.8 Conscientious Objection and Equality: Contemporary Caselaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8.1 Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8.2 Social Care Services . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8.3 Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8.4 Public Defence and Security . . . . . . . . . . . . . . . . . . . . 7.8.5 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8.6 Commercial Services . . . . . . . . . . . . . . . . . . . . . . . . . 7.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

319 319

Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Principles, Doctrines and Definitions . . . . . . . . . . . . . . . . . . . . 8.2.1 Religion, Belief and Matters of Conscience . . . . . . . . . 8.2.2 State Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Conscientious Objection and Exemption: An Evolving Policy . . . 8.3.1 Initial Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 Same Sex Relationships: Evolving Contemporary Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

371 371 372 372 376 379 379

322 323 324 325 326 327 328 328 329 332 332 332 333 334 334 337 338 343 343 350 353 360 362 366 368 369

381 381

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8.3.4

Medical Advancement: Contiguous Policy Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 From Policy to Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.1 Universal Legislative Constraints . . . . . . . . . . . . . . . . 8.4.2 Contemporary Government Initiatives . . . . . . . . . . . . . 8.5 Legislative Framework: International and Domestic . . . . . . . . . . 8.5.1 International Legislation . . . . . . . . . . . . . . . . . . . . . . . 8.5.2 The Constitution and Federal Legislation . . . . . . . . . . . 8.6 Framework of Courts and Regulatory Bodies . . . . . . . . . . . . . . 8.6.1 International Courts and Regulatory Bodies . . . . . . . . . 8.6.2 Domestic Courts and Regulatory Bodies . . . . . . . . . . . 8.7 Fundamental Human Rights and Conscience . . . . . . . . . . . . . . . 8.7.1 Right to Freedom of Expression . . . . . . . . . . . . . . . . . 8.7.2 Right to Freedom of Association/Assembly . . . . . . . . . 8.7.3 Right to Freedom of Religion . . . . . . . . . . . . . . . . . . . 8.8 Conscientious Objection and Equality: Contemporary Caselaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8.1 Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8.2 Social Care Services . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8.3 Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8.4 Public Defence and Security . . . . . . . . . . . . . . . . . . . . 8.8.5 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8.6 Commercial Services . . . . . . . . . . . . . . . . . . . . . . . . . 8.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

New Zealand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Principles, Doctrines and Definitions . . . . . . . . . . . . . . . . . . . . 9.2.1 Religion, Belief and Matters of Conscience . . . . . . . . . 9.2.2 State Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Conscientious Objection and Exemption: An Evolving Policy . . . 9.3.1 Initial Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.2 Abortion, Contraception and Adoption: A Context for Developing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.3 Same Sex Relationships: Evolving Contemporary Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.4 Medical Advancement: Contiguous Policy Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 From Policy to Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.1 Universal Legislative Constraints . . . . . . . . . . . . . . . . 9.4.2 Contemporary Government Initiatives . . . . . . . . . . . . . 9.5 Legislative Framework: International and Domestic . . . . . . . . . . 9.5.1 International Legislation . . . . . . . . . . . . . . . . . . . . . . . 9.5.2 The Constitution and Federal Legislation . . . . . . . . . . .

383 384 385 386 387 387 388 390 391 391 392 392 398 398 402 402 409 412 418 421 424 426 426 429 429 430 430 433 436 436 438 439 440 442 442 443 443 443 444

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Contents

9.6

Framework of Courts and Regulatory Bodies . . . . . . . . . . . . . 9.6.1 International Courts and Regulatory Bodies . . . . . . . . 9.6.2 Domestic Courts and Regulatory Bodies . . . . . . . . . . 9.7 Fundamental Human Rights and Conscience . . . . . . . . . . . . . . 9.7.1 Right to Freedom of Expression . . . . . . . . . . . . . . . . 9.7.2 Right to Freedom of Association/Assembly . . . . . . . . 9.7.3 Right to Freedom of Religion . . . . . . . . . . . . . . . . . . 9.8 Conscientious Objection and Equality: Contemporary Caselaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8.1 Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8.2 Social Care Services . . . . . . . . . . . . . . . . . . . . . . . . . 9.8.3 Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8.4 Public Defence and Security . . . . . . . . . . . . . . . . . . . 9.8.5 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8.6 Commercial Services . . . . . . . . . . . . . . . . . . . . . . . . 9.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . .

447 447 448 449 449 453 454

. . . . . . . . .

457 457 465 467 471 474 478 479 480

10

Themes of Jurisdictional Commonality and Difference . . . . . . . . . . 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Principles, Policy, & Legislation . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.2 Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.3 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 Conscientious Objection & Fundamental Human Rights . . . . . . 10.3.1 Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 Freedom of Association/Assembly . . . . . . . . . . . . . . . . 10.3.3 Freedom of Religion . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4 Conscientious Objection and Equality . . . . . . . . . . . . . . . . . . . 10.4.1 Public Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.2 Social Care Services . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.3 Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.4 Public Defence and Security . . . . . . . . . . . . . . . . . . . . 10.4.5 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.6 Commercial Services . . . . . . . . . . . . . . . . . . . . . . . . . 10.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

483 483 483 484 490 494 495 496 499 500 502 502 507 509 513 515 518 519 520

11

A Democratic and Diverse Society: Balancing Equality and Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Cultural Heritage and Pluralism . . . . . . . . . . . . . . . . . . . . . . . 11.2.1 Pluralism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

521 521 522 523

Part IV

Equality, Exemption and Democracy

. . . .

Contents

12

xxiii

11.2.2 Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.3 Conscientious Objection in a Non-Christian Context . . 11.3 Democracy and Dissent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3.1 Dissent and Development . . . . . . . . . . . . . . . . . . . . . 11.3.2 Religion and Dissent . . . . . . . . . . . . . . . . . . . . . . . . 11.3.3 Reform and Dissent . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Democracy and the Contemporary State/Citizen Relationship . . 11.4.1 Citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.2 Contemporary Citizenship and Conscientious Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5 The Public/Private Balance and the Proportionality Principle . . 11.5.1 Public/Private Interests . . . . . . . . . . . . . . . . . . . . . . . 11.5.2 Public Interest and Conscientious Objection . . . . . . . . 11.5.3 Private Interest and Conscientious Objection . . . . . . . 11.5.4 Balancing Public/Private Interests: The Proportionality Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . .

523 525 526 527 528 530 532 532

. . . . .

534 535 535 537 539

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1 State/Citizen, Covid-19 and Conscientious Objection . . . . . . . 12.2 The State/Citizen Relationship . . . . . . . . . . . . . . . . . . . . . . . . 12.2.1 The State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2.2 Citizen and Citizenship . . . . . . . . . . . . . . . . . . . . . . . 12.3 Public Health, Conscientious Objection and Lessons from the Covid-19 Pandemic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.1 Lockdown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.2 Vaccination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . .

547 548 548 548 550

. . . .

550 551 551 552

. 539 . 544 . 544

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553

Part I

State, Citizen and Dissent

This Part, in two chapters, explores the background. The first begins the book by examining what is meant by “conscientious objection” and tracing its history. The second focuses on “dissent” and “conscience”: it considers the basis in ethics and morality for matters of conscience; the rights of minorities to challenge the status quo; the duty of the State to protect its citizens and accommodate differences. It considers why, over time, social change leads to clashes of morality, why the law privileges certain moral standpoints over others, how such tensions come to constitute “culture wars” and it considers the latter’s significance.

Chapter 1

Conscience and Conscientiousness: Principles, Concepts, and Parameters

Abstract Beginning with the origins of conscientious objection, the chapter considers the background to this concept, focusing on: its origins, particularly its relationship to ‘religion’, ‘belief’ and matters of ‘conscience’; the relevance of ‘State neutrality’, its relationship with cultural heritage and the significance of secularism. It examines the meaning of ‘conscientious objection’ and how this relates to rights of autonomy; it analyses “conscience”, exploring its roots in ethics. It considers: the role of the ‘conscientious objector’, examining what distinguishes it from that of a ‘whistleblower’ or social activist; the relationship between authority and the right to object; the distinctive characteristics of ‘conscientiousness’ and how this is interpreted in law. The chapter then turns to examine the evolving policy governing the matters to which an objector has been able to claim legal exemption on the basis of religion/ belief/conscience. A brief historical narrative provides an overview that tracks the role of the principle from early application in relation to the taking of oaths and armed combat to an evolving policy regarding, successively, matters such as vaccinations, abortion, LGBT and trans gender issues, to its current relevance in a health and social care context. This exploration of the many aspects of conscientiousness prepares the way for the examination of objection and dissent that follows in the next chapter.

1.1

Introduction

Objections are rarely conscientious. The cause of an objection may be as varied as its effects and as the ways and means of expressing it, most of which in any case will not give rise to any special exemption privileges in law. This chapter explores and explains what is distinctive about ‘conscientious objection’. It sets out the basic building blocks—concepts, principles, and parameters—used to create the themes that thread through the book and provide the basis for a comparative jurisdictional analysis. Beginning with the origins of conscientious objection, the chapter considers the background to this concept, focusing on: its origins, particularly its relationship to © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_1

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

‘religion’, ‘belief’ and matters of ‘conscience’; the relevance of ‘State neutrality’, its relationship with cultural heritage and the significance of secularism. It examines the meaning of ‘conscientious objection’ and how this relates to rights of autonomy; it analyses “conscience”, exploring its roots in ethics. It considers: the role of the ‘conscientious objector’, examining what distinguishes it from that of a ‘whistleblower’ or social activist; the relationship between authority and the right to object; the distinctive characteristics of ‘conscientiousness’ and how this is interpreted in law. The chapter then turns to examine the evolving policy governing the matters to which an objector has been able to claim legal exemption on the basis of religion/ belief/conscience. A brief historical narrative provides an overview that tracks the role of the principle from early application in relation to the taking of oaths and armed combat to an evolving policy regarding, successively, matters such as vaccinations, abortion, LGBT and trans gender issues, to its current relevance in a health and social care context. This exploration of the many aspects of conscientiousness prepares the way for the examination of objection and dissent that follows in the next chapter.

1.2

Principles and Definitions

Conscientious objection is a somewhat anomalous legal construct, unattached to and unsupported by any particular body of law. It can only be properly understood in context and has functioned largely as an exemption clause to very specific civic duties—in the main as a caveat to conscription—since it first surfaced. Its role has always been subject to other principles, applicable within certain boundaries and restricted to specific subjects. Its origins lie in religion, as now extrapolated into a range of beliefs and matters of conscience, and it is here—in a traditional religion, or a modern form of belief or in a matter of conscience—that the legal justification for a compelling conscientious objection must be sought.1 But, while tracing its origins may be complicated, there are further complications presented by its now rapidly extending ambit of application. The validation of ‘conscientiousness’ lies not in abstract feelings, opinions, or political views but in sincerely held values and principles: an objection that does not come from that frame of reference cannot in law be conscientious.2 However, the fact that there has been an exponential increase in the number and range of beliefs recognised by the law within the past few years has correspondingly increased the potential application of conscientious objection. Arguably, this marginal legal

1

See, further, Adenitire (2019). It must be acknowledged, however, that as distinct from its legal meaning, ‘conscientiousness’ in plain English can simply refer to a standard of care, a certain fastidiousness in dealing with tasks.

2

1.2 Principles and Definitions

5

construct is now poised to become much more mainstream and to generate its own body of jurisprudence.

1.2.1

Religion, Belief and Matters of Conscience

Matters of religion, belief and conscience can be difficult to grapple with, not least because some are ephemeral, others may mutate and many are misunderstood or function as little more than habitual lifestyle accessories. In recent years the definitions of ‘religion’ and ‘belief’ have become increasingly fungible as they stretch to accommodate Rastafarians, Zoroastrians and the Baha’i as well as vegans,3 atheists4 and environmentalists,5 but it is here—in the commitment of individuals to values— that objections become conscientious. The profligate spread of these definitions is reflected in the volume and variety of situations now giving rise to objections rooted in some legitimated sense of ‘conscience’.

1.2.1.1

Traditional Religions

Christianity, Judaism and Islam, are among the oldest of extant religions and each are mono-theistic with accompanying doctrines and rituals of worship. Other religions such as Buddhism, Hindu and Sikh tend to be non- or multi-theistic, with rituals being of central importance. In addition, there are a large and fluctuating number of organisations, with a varying quotient of religious characteristics, of which Mormons, Scientologists, Druze and Zoroastrians are among the more notable. Then there are religious type groupings that derive from and represent a particular ethnic culture, such as may be found among the Indigenous communities of Canada, Australia, New Zealand and the U.S. (the ‘CANZUS’ nations)6 and elsewhere. Many of these are of ancient origin—preceding Christianity—in which theism merged with nature.

3 Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 1:11-CV-00917 (S.D. Ohio 2012). 4 Kaufman v. McCaughtry, 419 F.3d 678, 682 (7th Cir. 2005). 5 Grainger plc v. Nicholson [2010] IRLR 4. 6 The CANZUS nations became known as such when they collectively declined to join the 144 signatories to the UN Declaration on the Rights of Indigenous People in 2007; the only 4 nations to oppose the declaration.

6

1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

Christianity The common law jurisdictions are rooted in Judeo Christianity, meaning that for centuries they have shared and been shaped by the same set of beliefs and values and as noted above have developed not dissimilar cultures. This significant area of commonality has become steadily if unevenly eroded in recent decades as secularism and the impact of other religions—most notably Islam—together with a varied range of philosophical, ethical and other belief systems have combined to undermine their Christian foundations. However, and most importantly, several judicial rulings in different countries have recognised the necessity to reprise traditional religious beliefs and re-interpret their meaning in the light of the current social context. An approach largely disregarded by evangelical Christians who consider themselves bound by biblical precepts. In addition, arguably, Christian beliefs and values are also to some extent becoming diffused and diverted into the ‘culture wars’— particularly in the U.S.—in which an agenda of morality issues now serve as proxies for religion and add to the complications regarding conscientious objection.

Islam Unlike Christianity, Muslim prescriptive religious edicts dating from the Middle Ages have not undergone any revision to reconcile them to the norms and mores of contemporary society. Muslims, in the main, continue to respect the prescriptive injunctions of Shari’a law: its resolute intolerance of ‘heretics’ and ‘apostates’ and the Hudud punishments; this prescriptive regime, like others, leaves no room for individuals to conscientiously object to matters governed by doctrine. For many Muslims, however, particularly those who are citizens in Western democratic societies, it is the maqasid or governing principles and objectives rather than the regulatory rules and punishments of Shari’a that inform their daily lives.

Judaism There are three different branches of Judaism: Orthodox (Haredi and Dati); Conservative or Reform (Masorti); and Reform (Hiloni). Orthodox Judaism shares with Islam a commitment to traditional religious beliefs. Adherents continue such practices as daily worship, dietary laws (kashruth), traditional prayers and ceremonies, regular and intensive study of the Torah, and the separation of men and women in the synagogue. Again like Muslims, Orthodox Jews maintain their own religious legal system which is similarly patriarchical, accommodates gender inequality and which—particularly in relation to marriage, divorce and other family matters—is at variance with much contemporary statutory law. Judaism teaching is subject to the governing principles of halakha or ‘higher power’ from which the authority of traditional religious precepts are interpreted—through

1.2 Principles and Definitions

7

readings of the Talmud—and applied by the faithful to guide them in their dealings with contemporary social issues. For millenia these traditional religions have been readily identified and differentiated by their respective doctrines, tenets and modes of worship. They have played a crucial role in the intergenerational transfer of culture. Adherents have been able to rely on the consistency of beliefs and the timeless structure of patterns of worship as a framework for family life and social continuity. When an objection was raised, pleading that some policy, law or activity was contrary to established religious beliefs, the society as a whole knew exactly what those beliefs were, understood and respected the significance of the challenge and had a collective interest in having the matter resolved. As social homogeneity gave way to fragmentary groups, adhering to correspondingly varied beliefs, so the conscientiousness of an objection, the locus standi of the objector and the nature of their constituency became more difficult to validate. While for most purposes and for most adherents, religious tradition continues as before, the law has made three significant changes for the Christian religions, unlike Orthodox Judaism or Islam, it now: requires family matters to be wholly subject to civil rather than religious law or doctrine; permits a degree of reinterpretation to allow prescriptive mediaeval doctrines to be contemporised (allowing, for example, ‘marriage’ to accommodate same sex relationships); and it ascribes equal legal status to a range of beliefs, matters of conscience and philosophy alongside the doctrinal creeds of the traditional religions. For the common law jurisdictions currently being considered, the acceptance and compliance of their mainstream Christian and secular citizens with newly legislated social mores can be largely assumed. They have, after all, been approved by their political representatives. However, that of their Evangelical, Islamic and Judaism counterparts cannot (or, is at least uncertain) as they ascribe primary authority over such matters to their respective traditional doctrines and religious leaders. Further, although overt acceptance can be assumed in relation to the first group and matters subject to legislation—abortion and same sex marriage etc—the downstream effects of the change in social mores—the ‘morning after’ contraceptive pill and sexual orientation and gender identity (SOGI) related material in public school curriculum etc—together with matters not yet necessarily subject to legislation—medically assisted death etc—attracts resistance from many of them and from other religious adherents. This in turn would seem to generate public expressions of private piety as a means of self-affirming religious values—burqua, crucifix, Muslim Friday prayers on city pavements etc—serving as badges of difference, an intended social indicator of commitment to a traditional religion; and for some signifying a conscientious objection to prevailing anonymity. Add to this a prescriptive overlay of equality legislative requirements and a fertile field opens up for multiple conscientious objections.

8

1.2.1.2

1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

Contemporary Belief Systems

The world of beliefs has grown much more complex and contentious than could possibly have been foreseen only a few decades ago. From veganism to paganism, the multiplicity of diverse beliefs—including those of groups such as the Wiccas, faith-healers, and, in some countries, naturalists, vegans, lesbian witches7 and the Jedi8—now legally entitled to equal status with the above traditional religions is constantly expanding.9 The inescapable corollary of such a fundamental devaluation of ‘god’ and the transcendant in the fringes of ‘religion’ and ‘belief’ in contemporary developed western societies is that the underpinning of ‘conscientious objection’ has now acquired an equal degree of uncertainty. This is of significance for many reasons including, as noted, the fact that the expansion correspondingly increases the range of grounds on which claims of conscientious objection may be based. It may be that this sense of direction was presaged by the Nürnberg trials and the court’s rejection of the defence that the 24 accused were ‘only following orders’.10 It was a rejection that finally settled a contentious issue that had long been the subject of judicial equivocation. The defendants were to be individually answerable for their actions: each had a conscience and should have been guided by it; no one could avoid culpability by claiming exemption on the grounds that their conscience had been overidden by ‘superior orders’. Thereafter, individual accountability for ‘matters of conscience’ became a leitmotif of modern democratic society.

Legitimacy and Cogency Initially, regulatory efforts to establish the legitimacy of a belief system was by means of assessing the new against a specification for the old: the traditional need for doctrines, tenets, worship, celebrants etc that typified collective religious belief was used as a template for assessing whether new forms conformed to that model. This was defeated by the diversity and mutation of belief systems, by judicial rejection of doctrines and tenets as indicators of the veracity of contemporary beliefs and also by the perceived unfair advantage in terms of a public credence that might be gained by those modelled on traditional religions.11 In addition, while there was widespread consensus that an individual’s religious beliefs must be ascertained by examining

7

See, the 2018 IRS ruling that the Pussy Church of Modern Witchcraft, an organisation founded by and for lesbian feminists, could be recognised as a ‘church’ with ‘beliefs’ and as such qualified for tax exemption status. 8 The 2001 census in New Zealand recorded 53,000 citizens affirming adherence to the Jedi in response to the question on religious affiliation; but had fallen by half in the most recent census. 9 See, Adenitire (2020). 10 The International Military Tribunal was held in Nürnberg, Germany, in 1945–1946. 11 Gillette v. United States [1971] USSC 45; (1971) 401 US 437, 28 Law Ed (2d) 168.

1.2 Principles and Definitions

9

personal convictions12 and related conduct, there was less certainty as to how much credence should be attached to subjective interpretations of traditional religions as determining religious adherence (see, further, Sect. 4.2.1.2). Ultimately, judicial analysis settled on the need not just for evidence of the sincerity of a claimant’s beliefs but also for a demonstrable level of cogency in their grasp of the beliefs in question and a requirement that the latter be coherent, not trivial but amount to something substantive; though, any attempt to interogate the validity of beliefs would be stopped by the religious exemption principle while efforts to introduce a ‘relative’ test could be negated by equality law (see, further, Sect. 3.4.2.1).

1.2.1.3

Matters of Conscience

‘Conscience’, often explicitly referenced as grounding an exemption from legislative responsibilities, was initially understood in law as morality derived from the doctrines of traditional religions. This, as noted above, became extended to accommodate a range of systems of belief (e.g. Jehova’s Witnesses, Hare Krishna) that steadily gained recognition in law, and then became further extended to encompass such other beliefs (e.g. vegans and atheists) as determined by a court to be of equal status to that of established religions. Explicitly or implicitly, conscience is of course the crucial and indispensable driving force for any conscientious objection.13 As far as the law relating to conscientious objection is concerned, it would currently seem to be the case that the conscience of an objector needs to evidenced by being rooted in, or analogous to, one of the above morality sources. Being an innate human characteristic, however, conscience may exist outside established sources and indeed philosophers since the time of Aristotle have argued that this is the case. Currently, new ‘matters of conscience’ are constantly being brought before the courts, some of which if found to be substantive and cogent will gain judicial affirmation and join the list of those with recognised status.

Ethics The schools of philosophy and psychology that address the intricacies of ethics have long been the provence of many exceptional academics, spawning a complex body

12

United States v. Seeger [1965] USSC 49,13 Law Ed (2d) 733. Although, as Chris Cowley comments: “if I am a religious believer, it is not my conscience driving the objection; rather it is the voice of God” (note to author, 22.07.21). Arguably, however, for their objections to be conscientious they must satisfy the tests of both conscience and religion if they are to avoid the Nürnberg trap. 13

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

of work, which cannot be done justice in the present context.14 Nonetheless, a limited trespass is necessary in order to differentiate the conscientious objector from all others. A conscientious objection is not simply a matter of choice or of opinion: a preference not to undertake a specific responsibility; that would reduce law, politics and related institutions to a free-for-all and conscience to a cherry picking exercise. A conscientious objector is a person faced with an unavoidable responsibility—most clearly when in the form of a legal duty—which can only be justifiably resisted by credible evidence of a deeply held commitment to a morality based in a legally recognised religion or belief: evidenced by “moral distress”;15 a personal, private morality that plainly conflicts with a public duty. For that morality to constitute a sufficient counterweight to a legal duty it needs to be: coherent and rational; to be held by the objector with a demonstrably sincere conviction; and be relevant. This test will not be readily satisfied: the objection may be based on sincerely held beliefs but be unreasonable; the beliefs may be cogent, coherent and substantive but be of little or no relevance to the presenting issue; and there may be no justifiable reason for the objection because, clearly, most laws are compliant with current morality and beliefs as in a democratic society they have all been politically mandated on behalf of the majority (see, further, Sects. 2.4.1 and 11.5.4.2).

1.2.1.4

Public and Private

A conscientious objector has traditionally been seen as someone claiming a time honoured status awarded to those whose dissent has been recognised by the community as a grave matter of considerable moral importance and of significant public and private consequence. Equally, the subject attracting the objection has been readily recognised by the community and the law as a matter of weighty moral gravity—e.g. refusing to serve as a soldier because of a belief that it is wrong to take another’s life—and has been respected as such. Particularly in a social context where the community—as in the Part III jurisdictions—share the same Christian values and beliefs, the paradigm of conscience and objection was clearly understood. Associated with respect for personal interpretation of such values the community similarly extended exemption privileges to religious organisations that were clearly established to represent and further the same values. For the most part this continues to be the case. However, those values have now been extented to accommodate others for which community acceptance is less assured. Private interpretation is much less dependent

14 15

See, for example: Kant (2013, 2019), and Hume (2004). Wicclair (2011), p. 21.

1.2 Principles and Definitions

11

upon public endorsement: the beliefs of vegetarians,16 vegans,17 Wiccans18 and, it would seem, lesbian witches19 are among the many now entitled to equal legal status with the traditional institutional religions. They share not only that status but also, presumably, the entailed right to claim exemption on grounds of conscientious objection from such civic duties as can be shown to conflict with their particular beliefs. In practice, while the beliefs of vegetarians etc are matters of private concern and of no public relevance other than in relation to an organisational right to tax exemption (see, further, at Sect. 11.5.4.2), their increasing volume and variety dilute the traditional moral weight and coherence—not to mention public respect and legal processes—traditionally associated with consientious objection. A conscientious objection must be substantiated by reference to the morality allegedly underpinning the conscience of the objector. The latter will need to show that their values, principles, and sense of purpose are configured into a whole ‘way of life’ or philosophical outlook which has, with some consistency, come to govern their decision-making. It must be shown that their moral integrity is of such importance that in the circumstances it is sufficient to outweigh the consequences of their not fulfilling that obligation. Those consequences may well include burdening another with the responsibilities from which the conscientious objector was exempted: most clearly demonstrated in the context of conscription in times of war and as regards organisational exemption from tax obligations; but also such a unilateral shifting of that burden—particularly to scale, as in abortion procedures in Texas—can result in a significant distortion to the equality and non-discrimination principles crucial to the functioning of a democratic society. Arguably, as in the latter instance, where the consequence of an exemption is to impose a burden on others that is disproportionate—objectively judged—to the benefit gained by the conscientious objector then, in a democratic society and notwithstanding the merits and validity of their case, the objector’s conscience cannot prevail. To give automatic precedence to a matter of private conscience would be to grant a power of veto to be wielded unilaterally, regardless of the greater public good, which could impact the rights of others, potentially breach the public interest, nullify contracts and be incompatible with democratic principles.

16 Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 1:11-CV-00917 (S.D. Ohio 2012). 17 Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 1:11-CV-00917 (S.D. Ohio 2012). 18 Re O.P.S.E.U. and Forer, (1985), 52 O.R. (2d) 705 (CA). 19 See, further, at: https://www.forbes.com/sites/peterjreilly/2018/08/03/lesbians-want-a-church-oftheir-own-and-irs-approves/?sh¼200f914c21c2.

12

1.2.1.5

1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

The Public Interest

There are parameters for religious pluralism in a democratic society. Democratic principles—social inclusion, multiculturalism, equality and non-discrimination etc—extend a welcome to many and varied religious organisations but in the public interest may prohibit some of the practices associated with their beliefs. Quakers, the Amish and others are wholly accepted and while the Church of the Latter Day Saints, or Mormons, are also acceptable their practice of multiple coterminous marriages is not. Similarly with Islam and other religions and their practices which allow for under-age brides, but prohibit same sex relationships etc. The conscientious objections of such religious adherents to laws in the Part III jurisdictions that constrain their freedom of religion right to so manifest their beliefs are met with the response that the practices in question are not compliant with the domestic public interest which is why they are legally prohibited. Arguably, this is a difficult matter which ultimately is one governed by cultural context rather than religion alone and points up the problems that will inevitably surface for democratic societies in the future as the range of religions and beliefs they accommodate becomes more extensive.

1.2.2

State Neutrality Towards Religion and Belief

This principle emanates from several international instruments20 and has featured in decisions by many courts including the USSC21 and the ECtHR22 (see, further, Sect. 3.4.3). While there is broad agreement that it requires the State to treat all religious and secularist entities equally—whether with disinterest, with support or with regulatory monitoring—there is considerable controversy as to whether the principle permits State intervention to effect or maintain a ‘level playing field’ through affirmative action to increase or reduce the relative salience of the organisations involved. One aspect of the principle is the obligation resting on the State not to impose unnecessary constraints on those who need to manifest, or advocate on behalf of, their religious beliefs by objecting to laws they consider to be harming or obstructing those beliefs. Another is that the structural nature of the State/religion relationship can disadvantageously impact upon minority groups and atheists: legislation— particularly equality and non-discrimination statutes—intended to apply universally and neutrally to all citizens may impose an undue burden upon a particular religious minority. Proportionality clearly has an important role to play here (see, further, at

20

See, for example: the ECHR, Articles 8, 14 and 18; ICCPR, Articles 18 and 27; CEDAW and the UN Resolutions on the Elimination of All Forms of Religious Intolerance 1981 and 1993. 21 See, Van Orden v. Perry, 545 U.S. 677 (2005); Epperson v. Arkansas, 393 U.S. 97 (1968). 22 See, Hasan v. Bulgaria, 34 Eur. Ct. H.R. 55 (2000); Manoussakis v. Greece, 23 Eur. Ct. H.R. 387 (1996); Kokkinakis v. Greece, 17 Eur. Ct. H.R. (ser. A) 397 (1993).

1.2 Principles and Definitions

13

Sect. 11.5.4). In keeping with the growing secularisation of society, the State neutrality principle is becoming correspondingly more important—if more difficult to apply—with the resulting tensions increasingly giving rise to conscientious objections.

1.2.2.1

The Secular and the Sacred

How to manage a balancing of secular and religious interests in a democratic society that is growing both evermore secular and religiously fragmented has become a pressing issue for contemporary governments in developed western nations. For many an approach that requires religious values and principles to be treated in law the same as those of a secular organisation is perverse: the former values are transcendent. Not only are they intended to be different from those that inform secular matters but also, by definition, adherents have no option but to adhere to them; to be a religious person is to accept and give effect, throughout the course of their daily life, to values that transcend secular concerns. As has been argued: “religion is not merely a matter of belief; it is a way of life; it is action” and one of the “most scathing rebukes in religion is reserved for hypocrites who believe but fail to so act”.23 Objectors, conscientious and otherwise, argue that by insisting on parity the State is diluting or dismissing the values that civilisation has been founded upon. There is evidence to show that generally, in keeping with the neutrality principle, the State has adopted the role of impartial organiser of religious pluralism: striving to ensure that religious adherents and their organisations are left to practice their religion and to function with autonomy in managing their own internal affairs, provided they do so without unduly infringing the rights of others; and where State support is required, providing it in an even-handed manner. Again, generally, the State is taking the necessary steps to address intolerance, stigmatization and negative stereotyping of persons based on their religion or belief, and to counter associated acts of violence or incitement to hatred. State failure to act consistently and equitably is a frequent cause of objections, some conscientious.

Secularism The growth and perceived relative merits of secularism have tended to become entangled with application of State neutrality and for some the result has been interpreted as State preferment of secularism, as licensing the State to assume responsibility for all decision-making, facilities, administrative systems and processes associated with matters in the public interest, without concessions to a religion or religions nor with any input from religious organisations. Indeed, Scrutton has argued that: “Western societies are organised by secular institutions, 23

See, Freeman (1958), p. 826.

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

secular customs and secular laws, and there is little or no mention of the transcendental either as the ground of worldly authority or the ultimate court of appeal in all our conflicts.”24 This has prompted some to object that “a militant secularisation is taking hold of our societies”.25 Jürgen Habermas, however, argues that State neutrality should not wholly exclude religion from the political arena, the State “must not discourage religious persons and communities from also expressing themselves politically as such . . .”.26 Essau27 takes this a step further in his argument that secularism would not be inconsistent with the establishing of safe zones for religious organisations and adherents permitting such entities to be exempted from the constraints of equality and anti-discrimination legislation where such constraints could be shown to have a direct adverse impact upon their beliefs.

State Preferencing of Religion Recently there has been evidence indicating, and again very generally, that in some instances the State is now taking a more positively supportive approach towards religion. Perhaps in part this represents a defensive response to a concern that established western religions and their adherents may feel more vulnerable and threatened in the face of ISIS terrorism or fear the erosion of their Christian cultural heritage as a consequence of Muslim migration. It may be an acknowledgment that traditional religious values and national culture are under threat from emerging social mores and now need State reassurance. Or, more mundanely, it could simply be an indication of State concern that a combination of secularism and equality legislation is causing undue harm to religious organisations which have long been its preferred public benefit service delivery partner in the provision of education, health and social care (see, further, Sect. 11.2.2.1). For present purposes, it is the outcome of a State policy pivot away from neutrality and towards support for religion—arguably selectively—and its associated values that is of particular interest.

State Defence of Cultural Heritage Although modern democratic society is becoming more secular, the growing raft of international human rights, uniformly binding on signatory nations, require a State to

24

See, Scruton (2006), p. 142. Baroness Warsi, cabinet minister in UK government, article in the Telegraph newspaper, (14.02.2012). 26 Habermas (2006), pp. 9–10. 27 Esau (2000), p. 719. Also, see, Esau (2009–2010), p. 389. 25

1.3 Conscientious Objection: Concept, Interpretation and the Law

15

facilitate the right to freedom of religion and to respect and protect the culture and beliefs of its citizens (see, further, Sect. 3.4.2). There is also an argument that equality is all very well but when religion is conflated with culture to give a nation or region a coherent identity, and all that goes with it in terms of a secure sense of belonging for successive generations (producing its distinctive art, artefacts and other cultural characteristics) for the citizens and communities concerned then it is not feasible to regard religion as separable from culture. It may be unreasonable to expect any religiously/culturally coherent jurisdiction to jettison such customs and practice: it would in fact be treating any such nation or region unequally, relative to other more pluralist societies, by requiring a devaluation of the role traditionally played by religion in order that parity be achieved. The State itself may further undermine the neutrality principle by its persistence in using traditional religion-specific symbols, prayers, references on coinage and displays in public buildings and ceremonies which may also include prescriptive rules regarding the wearing of religious clothing or related ornaments by civil servants (see, further, Sect. 3.5.3.1). It may well stretch to affirmative action on behalf of specific religious organizations and will almost certainly intrude into guidance for the public school curriculum to ensure that pupils are attuned to current civic values and social mores. For the common law nations presently being considered, this can all be interpreted as infering a State duty to favour its Christian heritage and contemporary Christian values relative to secularism and other religions (see, further, Sect. 2.5. 1.1). As conscientious objections increase from those who perceive their religion/ culture to be adversely affected, or from others who consider their access to religiously prohibited facilities (e.g. abortion clinics) obstructed, so does the pressure on the State to review its commitment to the principle of neutrality.

1.3

Conscientious Objection: Concept, Interpretation and the Law

The conscientiousness of an objection is to be determined: firstly, in relation to a belief that the objector purports to uphold; secondly, in the manner or means used for objecting; and finally, in relation to the subject perceived as objectionable. That determination is a matter for the law.

1.3.1

Objections: Conscientious and Otherwise

Most objections to a duty are based simply on self-interest: to assert and defend rights. For it to be conscientious an objection must go a step further and be grounded

16

1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

on the objector’s legally recognised religion, belief or matter of conscience.28 Moreover, not all that are so grounded necessarily wholly conform to that model.

1.3.1.1

The Conscientious Objector

Given the multiplicity of faiths in contemporary pluralist common law jurisdictions, coupled with the issues emerging from radical changes in social mores and developments in science and medicine, the opportunities for objections to be conscientious have, as noted, correspondingly increased in volume, variety and form.

Singular or Also Collective There is a view that regardless of the justness of the cause, the sincerity of belief in it, or in the chosen method for giving effect to it, the sense of purpose of any collectivity cannot be attributed to and confined within the singularity implied by ‘conscience’. • The Autonomous Individual Freedom of conscience, certainly as referred to in the UDHR29 and possibly as a matter of literal definition, confines interpretation of ‘conscientious objection’ to individuals, or perhaps to singular legal entities: moral integrity is a matter for an individual; its acquisition and continuation does not readily fall within group control. There is an argument that it cannot be properly understood as having a collective dimension, as referring to an organisation, even to such a conscientious one as the Quakers. Tellingly, while that organisation as a whole is recognised in law as having a pacifist identity, each individual member is required to justify their claim to exemption from a legal duty, in a personal appearance before a court or regulatory body, by presenting evidence demonstrating not just long-standing and active Quaker membership but personal commitment to relevant beliefs. Arguably, the whole point of the principle—as with human rights in general—is to disaggregate the individual from a collective (as in the Nürnberg trials) and to acknowledge that in law every single individual is entitled to call upon the law for recognition of their identity and protection of their person. This has been the case since mediaeval times when the common law principle of habeas corpus required the relevant authorities to produce an individual before the court if proceedings were to be progressed. • Corporate Entities See, further, Brownlee, K., ‘Conscientious Objection and Civil Disobedience’, at: https:// hummedia.manchester.ac.uk/schools/soss/politics/research/workingpapers/mancept/BrownleeConscientiousObjectionandCivilDisobedience.pdf. 29 The UN Declaration of Human Rights 1948, Article 18, states that ‘everyone has the right to freedom of thought, conscience and religion’. 28

1.3 Conscientious Objection: Concept, Interpretation and the Law

17

Despite all the above, there is a small but steadily increasing body of caselaw illustrating that judicial recognition can be given to the conscientious objection articulated by a collective.30 Indeed, the law has long since acknowledged that a corporation is a legal person when it comes to signing contracts etc. and where the purpose and functions of an organisation are wholly enwrapped by, and focused on giving effect to, a specific policy then it may qualify for recognition as a singular entity (e.g. as a charity and therefore entitled to tax exemption privileges). Moreover, as corporate scandals—in companies such as Enron, Worldcom, Parmalat, and Volkswagen—have become increasingly common, so the law has evolved to impute the immoral conduct of an executive to the company and hold such a company accountable for the ‘unconscionable’ conduct of its agent. Arguably, given the embedded locus standi of the religious exemption—and the consequent status acquired by religious organisations and their many and varied emanations—we have now moved well past the point where this matter is still debateable. Corporate entities would seem, in law, to be capable of being recognised as driven by a distinctive mission, ethos and moral values. That being so, they can be held to have a ‘conscience’, are able to exercise conscientious objections grounded on their beliefs and may be held accountable for doing so.

Conscientiousness While any sincerely held religious, moral, or ethical belief is eligible to qualify as conscientious, sincerity itself—as noted above—is insufficient. The belief must also be credible and the commitment cogent, otherwise any and all subjectively affirmed truths—the ‘tooth fairy’ problem—would be equally valid. In addition, the subject to which an objector is conscientiously opposed must be one of reasonable importance: while many matters may attract objections, few will consitute a matter of conscience. The matter in question is perceived by a conscientious objector as a moral imperative (see, further, Sect. 2.2.1.1) and the objection is to being personally and directly engaged with it. The matter is not a ‘cause’ that has been sought out by the objector and exposed to the public for affirmation, nor is it simply a consequence of being the unintended victim of a law of universal application, but an issue that has arisen which the objector’s conscience cannot ignore. Unlike a social activist, the conscientious objector is not trying to change any laws, is not encouraging mass protest, nor are they being accusatory: their dissent is essentially private not public (see, further, Sect. 2.3.2.1). When considering whether the objection can be restricted to ‘hands on’ involvement or whether consideration should extend to include objectors at varying degrees of remove, there is an unavoidable question regarding the morality of facilitating the

30

See, for example, Rommelfanger v. Federal Republic of Germany, Application No. 12242/86, (1989) and Vejdeland and Others v. Sweden, Application No. 1813/07, (2012). Note also, Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682 (2014).

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

immorality of others—regardless of the context (war, abortion, medically assisted death etc)—which needs to be addressed. In any event, the matter must be one that relates directly to the objector’s belief: it must be evident that given the nature of his or her legitimate belief, the objector could not reasonably be expected to ignore, avoid or comply with the challenge presented; and their consequent action or lack of it is compliant with the standards of a democratic society.

1.3.1.2

The Means or Method of Objecting

A conscientious objector is one who is refusing to do something required of him or her by law, by regulation or by social norms, for reasons of religion, belief or matter of conscience. The non-compliance is most usually non-demonstrative: a deficit of action; a non-aggressive indication, signifying a rejection, for principled reasons, of a requirement generally binding on the public, unless the objection relates to a voluntarily-assumed role (e.g. the doctor). It is not intended as a public protest, nor as a contribution to effecting social change, nor as a mere gesture signalling virtue, only as a private means of maintaining consistency between personal actions and conscience, a gesture of self-affirmation confirming the sincerity of deeply held convictions. Other forms of non-compliance, while intended to be a public protest, arguably also have an inbuilt dimension of conscientious objection. Whistleblowers and victims of religious discrimination share much of the DNA of the conscientious objector—as do social activists and all those who rebel against perceived iniquity (see, further, Sect. 3.6.4.1)—their actions, at least initially, are triggered by a troubled private conscience even if not linked to a cogent belief system and even if ultimately expressed in public protest.

Whistleblowers These appear to be a species of conscientious objector: they act as they do in response to something they know to be wrong. Their conduct, often virtuous, is motivated by a sense of injustice or wanting protect the public from harm: it is not they but some other who is out of step with society’s expectations; the whistleblower is defending not objecting; is impelled to reassert social norms rather than claim exemption from them or resign to avoid dealing with them. As Rawls has pointed out, such persons “serve society not only by questioning, but by inhibiting departures from justice and correcting departures when they occur, thereby acting as a stabilizing force within society”.31 They deliberately seek public attention—unlike the true conscientious objetor—in order to point out a violation, failure or deficit and do so in the expectation that something will be done to rectify the aberration and those responsible will be held to account. In a curious inversion of the standard

31

Rawls (1971), p. 383.

1.3 Conscientious Objection: Concept, Interpretation and the Law

19

interpretation of conscientious objection, the whistleblower is most often acting as a self-appointed representative of the values and/or law of their society in challenging those whose conduct is perceived as harmful to that society. However, their motivation is one that springs from conscientiousness and while other factors— denouncement, perhaps,—may also be an impelling trigger for action, there is a presumption that such persons are acting from a basis of cogent beliefs and therefore, barring evidence to the contrary, they must be counted in as conscientious objectors.

Victim of Religious/Belief Discrimination Again, someone who protests that they have suffered harm or disadvantage—due to their particular beliefs—as a consequence of specifically directed actions or laws, would appear to be another species of conscientious objector. So, for example, those who require halal or kosher meat on religious grounds may well perceive themselves as victimised by laws that mandate stunning of animals before slaughter. Like whistleblowers, when victims of such discrimination react to the causes of their circumstances there is a presumption that they are acting from a basis of cogent beliefs and are, in the main, being impelled by a sense of injustice, a violation of the principles that form their consciences. A response to discriminatory effects may be motivated by, say, a desire for reparation or to lay blame, but at least initially it is probably that of a conscientious objector. However, and again like whistleblowers, it may be that their actions are not linked to and driven by a cogent belief system but are more simply a product of their circumstances in which case they lack the element of independent conscience necessary to meet that definition.

Conscientious Objection and/or Discrimination Whether in practice a protest is defined as unlawful discrimination, or as a conscientious objection, is often simply a consequence of the type of legal proceedings that brings the matter before a court or regulatory body. Most often objections to unfair treatment can be classified and litigated under equality and no-discrimination law: usually they fit with the protective legal provisions and there is no need to look any further; some clearly lack any extra dimension of violated religion/belief/conscience; but there are circumstances in which that extra dimension is also present and is sufficient to transform a victim’s complaint into a conscientious objection, albeit one that is unnecessary for litigation purposes. This is of importance because, arguably, there is a growing weight of incidences of discrimination that are proxies for religious discrimination—most often in matters of sexuality—but are legally processed solely as a prohibited species of discrimination and not also accounted for as contributing to a body of evidence indicating the nature and extent of deepening cultural/religious rifts in modern western society.

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

Social Activists Unquestionably, these are primarily champions of a cause: they act collectively with the publicly declared objective of effecting change. However, such collective forms of dissent in all probability start with, or find leadership in, the conscientious objection of an individual and may well include such persons in their activities. Their objective is to build sufficient public momentum—including through orchestrated disruption—to leverage specific social change and individual ‘conscience’ becomes no more than a means to that end (see, further, Sect. 2.5.3.5).

1.3.1.3

The Subject

The circumstances justifying an objection vary according to the perception of the individual concerned. For example, people resign from their posts or refrain from involvement in a particular activity for any number of wholly personal reasons: unease with issues, with the means for dealing with them or with the likely consequences; their actions being most often driven more by ambition, anxiety thresholds or expediency than by conscience. While reacting negatively is possible in relation to an infinite variety of matters, only a few warrant a conscientious objection and then the reason for it must be made clear.

A Principled Rejection of the Status Quo The conscientious objections of a few to circumstances they consider iniquitous have often been responsible for triggering many of the more formative social changes. Social movements that challenged slavery, apartheid, suffrage and gender inequality—all of which, it might be noted, were once accommodated by democratic societies—can probably all be traced back to the leadership shown by those who refused to condone abuses they objected to on principle. More recently these have been succeeded by resistance to various new social causes—climate change, gender inequality and sexual abuse etc—which again can usually be linked to individuals who first made similar principled stands. Most often, however, the stand now taken is by someone who privately and independently declines to endorse a prevailing social norm: for example, by wearing a cross on a necklace or a hijab to assert their religious identity and indicate disapproval of the religious anonymity imposed by secularism. In this context it is important to note the significance of what might be termed ‘monoculturalism’: the assumed right of someone—overt or sublimated—to hold and defend moral positions on certain issues, because they represent the values/ beliefs of the majority and its culture; positions open to challenge by a conscientious

1.3 Conscientious Objection: Concept, Interpretation and the Law

21

objection based on precisely the reverse of that assumption; an assumption viewed by the latter as exclusionary.32

1.3.1.4

Selectivity and Scale

Principles usually have a uniform application across a defined class—vegetarians, say, who simply decline to eat meat—but in practice this can be parsed, some eat fish, others are vegans etc. Similarly so with conscientious objection—there are those, for example, who are simply anti-war, others who support war in self-defence or specifically object only to nuclear war, drone strikes, use of chemicals or to war against certain countries or types of people. There are health care workers who will not take part in abortion procedures but some will during the first trimester. Again some doctors are resolved not to participate in the assisted death of children but are prepared to assist at the request of elderly terminally ill patients. Such selectivity can give rise to workplace complications in team settings such as health care where unity of purpose and collaborative effort is important or where a public service provider has to facilitate equality of access including to personally disapproved of service users. Clearly this is offset by an onus—if to an uncertain degree—on the objector not to knowingly place themselves in a position where their conscience is likely to obstruct fulfillment of contractual duties. There are also issues of scale: some principles are more important than others; the application of the same principle to different situations can be of varying importance; if only objectively and not to those involved. The conscientious objection to killing someone in war is of a different moral scale to an objection to baking a cake for a gay couple etc. Scale also comes into play in relation to the numbers of objectors involved: if many choose to opt out of the same activity this will risk imposing a disproportionate burden on all others available who do not share the same conscientious objection; most obviously as regards members of the armed forces who refuse to fight; but this clearly also applies with health care providers who object, for example, to engaging with abortion services. A corollary to any such large scale refusal is that it inflicts a correspondingly larger penalty on those who might otherwise have benefitted; so in the context of a pandemic, a population that may have achieved ‘herd immunity’ through universal vaccinations will be left exposed to risk of illness and/or death if many opt out; and potential service users, for example, may either suffer a loss of access or have to bear the cost, possible humiliation and definite inconvenience of travelling to an available service provider. The significance of such a penalty is illustrated by the availability of abortion in Ireland: legislation introducing this as a public service was finally introduced in 2018; by 2021 only 10 of the nation’s 19 hospitals provided full termination procedures; consequently, pressures of time force many women to journey to

32

See, further, A, B and C v. Ireland, Application No. 25579/05, (2010) and the dissenting minority judgment (at Chapter 5).

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

England—as did their counterparts in previous generations—to avail of a lawful service denied to them by conscientious objectors closer to home. Then there is the ancillary issue of degree of remove from the matter objected to: the further along that continuum the objector is placed, the more diluted is the moral force of their objection; the secretary who refuses to type a letter offering an appointment for a pregnancy termination is not in the same position as the doctor who refuses to conduct the procedure. However, alhough there is a differential in terms of relative capacity to affect outcome, subjectively the parties concerned are taking equal responsibility for matters within their control which gives parity to both as regards the relative force of their objections. Another aspect of scale is that relating to the ‘conscience’ of the objector. As some belief systems become more rarefied, amorphous, often narrowly focused and short-lived, so the weighting attached to objections from that quarter in relation to matters of relevance to those beliefs may be objectively considered to be of lesser importance: the fact that those objecting to the social inequity of children living in poverty, say, happen to believe in Christ, Buddha or the Jedi is beside the point. Matters of relative scale are always difficult but in this context are made more so by the convolutions of subjectively perceived morality/immorality, degrees of remove from matter objected to, contribution to facilitating a process, but mostly by laws which now accord equal status to all religions/beliefs/conscience.

1.3.2

Objections: Conscientiousness and the Law

Conscientiousness and law are not necessarily linked. ‘Conscientious objection’, however, has become a well established if ill defined legal term, the meaning of which is restricted to signifying a principled based opposition to authority, most usually as represented in law. Outside that context, the term is relatively meaningless.

1.3.2.1

Authority

Formal legitimate authority for all modern developed nations, such as those in Part III, lies with the legislature, the executive and the judiciary; albeit in varying degrees. The law expressing that authority has evolved from two main camps, the schools of ‘legal positivism’ and ‘natural law’, these and their variants are separated mainly by their differing views on the source of authority for law. Both approaches are equally valid for the proposition that for democratic societies law is the most important source of authority: it is the principal means of promoting social cohesion, order and continuity; and an important means for effecting social change; but it is the morality dimension that opens the door for law to be challenged by conscientious objections requiring greater flexibilty in its response to the interests of minority groups.

1.3 Conscientious Objection: Concept, Interpretation and the Law

23

Government and Legislature in Democratic Societies Maintaining an equitable balance between the three sources of legitimate authority is the hallmark—and the major challenge—of a democratic society. That separation of powers can be undermined by the exigencies of government in a time of emergency, such as in the Covid-19 pandemic. The pressure on government to then respond, rapidly and flexibly to an unfolding crisis and exercise effective management, may tempt it to centralise control over available powers which in turn can destabilise the institutional balance essential for the continued democratic functioning of society. Although Parliament has most usually made available statutory laws granting wide emergency powers to be triggered by government at such times, usually either ill-defined or restrictive, they may be inadequate and lead government towards creative interpretation rather than undergo the time-consuming and uncertain process of seeking Parliamentary authority by submitting proposed new legislation. Similarly, the courts can also be somewhat sidelined as their duty to scrutinise and adjudicate on alleged abuse of State powers, and ensure protection for human rights, may be obscured by the broad sweep of powers vested in government to take executive action in times of national emergency. In short, the institutional balance between Parliament, government and the courts—vital for democratic societies—is prone to being destabilised in times of emergency as government inevitably assumes control of such executive powers as it needs and finds available. The balance may also, of course, be undermined by political gerrymandering which erodes the independence of democratic institutions, particularly that of the courts. Any such destabilising attracts objections—conscientious and otherwise—and may well generate dissent. Government response to these challenges in times of a global pandemic provides a stress test for differentiating nations on the basis of their commitment to preserving the integrity of democratic society.

1.3.2.2

Objecting Conscientiously and the Law

The role of law and the mechanisms of the legal system for applying it have remained in place, conforming to much the same pattern throughout the common law world. Conscientious objection has served the purpose of assisting the adjustment of that law, alerting sources of authority to slippage occuring between legislative purpose and the requirements of justice as when a universally applicable law imposes an undue burden on a minority, or new forms of social need have emerged, or the mores of society change. It was JS Mill who made the case for conscientious objection in this context but notably did not restrict its role to challenging authority as represented solely in law. He rightly drew attention to the legitimacy and indeed

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

the responsibility of a citizen to protest not just against the constraints of unfair laws but also:33 against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.

This is very relevant as it indicates that conscientious objectors may need to direct their attentions to the negative constraints emanating from the general public as well as those imposed by law.

A Specific Legal Duty However, it remains the case that for any objection to be of significance to the law it has to relate to a specific duty. For it to be conscientious it must derive from the particular beliefs of the objector—‘core moral beliefs’34—which relate to a matter threatened by the nature of an imposed legal duty. So, for example, Thoreau wholly objected to slavery and was duly imprisoned when he withheld his payment of taxes in protest.35 Critically, the objection must also have a legitimate claim to recognition and protection in law. Leigh argues that for the most part these factors tend to combine to promote conscientious objections for three groups: medical professionals concerned at their participation in procedures at the beginning or end of life, such as abortion, administering emergency contraception, embryo research, withdrawal of medical treatment from the terminally ill, and physician-assisted suicide; public officials, particularly marriage registrars and their equivalents; and small businesses, especially those declining to offer wedding services to same-sex couples.36 While this classification usefully summarises the established position, there is also a necessity to take account of emerging issues indicative of the way the law might be trending. This might take the form of health and safety regulatory rules or guidance addressing the wearing of face masks, being vaccinated etc. Further, in keeping with the cautionary advice offered by Mills, there is a pressing need to draw attention to and to challenge the corrosive theories, attitudes and ‘fake news’ propaganda that publicly circulates through social media platforms. A consequence of that frame of reference is that conflicts between a legal duty and a conscientious objection are litigated, come before the courts or other regulatory bodies and, being the subject of resulting judgments, are available for analysis in a

33

Mill (1869), at Chapter 1, para 4. See, Wicclair (2011). 35 Thoreau, H.D., ‘On the Duty of Civil Disobediance’, (1849), Elegant Ebooks, at: https://www. ibiblio.org/ebooks/Thoreau/Civil%20Disobedience.pdf. 36 See, Leigh (2018), p. 379. 34

1.4 Parameters

25

book such as this. The referential frame is being constantly broadened by human rights law (see, further, Sect. 2.5).

1.4

Parameters

The origins of conscientious objection were clearly defined, emanated from a Christian cultural context, and were limited to forms of non-compliance with specific civic duties. From such a constrained genesis it has become extended analogously to encompass exemption from a wide range of such duties and would now seem poised for further expansion in keeping with contemporary changes in social mores and in the multiplicity of new forms of belief. Now, as then, the primary concern of the law focuses on the specific duty, on giving effect to the legislative intent; the exceptional allowance made for conscientious objection is a peripheral issue.

1.4.1

Origins: Exemption on Grounds of Religious Belief

Religion, or rather specific religions, initially grounded the right to be exempted from a legal duty. Its origins, therefore, lay not in any concern for an objector’s conscience but with the fact that he or she was bound by the prescriptive doctrines of their religion. It followed that the matter objected to had to be one that related directly to the beliefs of that religion.

1.4.1.1

Exemption from Military Service

It is said that St. Maximilian of Thavaste acquired his sainthood in 295 AD as a consequence of being beheaded due to his refusal, on grounds of Christian belief, to enlist in the Roman army, thereby becoming the first known conscientious objector. Thereafter many others were similarly executed or imprisoned when their Christian belief in the sanctity of life led to a refusal to serve in their country’s armed forces. Conscientious objection, as we now know it, was probably first accepted as an established legal principle, justifying exemption from military service, in the seventeenth and eighteenth centuries. The principle rested on the belief that to take a human life under any circumstances is evil. It was initially restricted to Quakers in the late 18th century then extended to Moravians in 1803 and thereafter to Jehovah’s Witnesses, Mennonites, Buddhists and some others. The exemption claim was initially a form of class action, predicated not on personal conscience but on membership of an officially excused pacifist religious organisation and, if granted, would most probably be conditional upon a substitute form of community service. Objections based on personal morality, or due to reasons of a philosophical or political nature, were considered invalid. This approach gradually shifted away

26

1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

from block exemptions on the basis of group membership to also require evidence of an individual’s sincere belief based objection. A matter of ‘conscience’ was to be construed according to the beliefs of the individual concerned; but not all beliefs, opinions or philosophies could be so construed.

1.4.1.2

Exemption from Oaths

The swearing of oaths—a pledge in God’s name—possibly originated in 4th century AD when Emperor Constantine’s requirement that witness statements be sworn was incorporated into the Justinian Code “and from that source it was adapted, primarily through the canon law, to all of European Christendom”.37 The oath related directly to belief: “persons who were deemed to lack the requisite religious belief could not be sworn and were therefore not competent to testify”. Thus only Christians were allowed to testify, and then by the 1600s, “it had first been held that Jews sworn on the Old Testament had sufficiently invoked the necessary obligations and sanctions required by the law, since both the old and new Testaments were considered to be the one ‘word of God’”.38 By then the swearing of an oath had become an essential pre-requisite for appointment to any official position, for bearing witness in trials or at weddings or for purposes of officiating on contracts, wills etc so the refusal to do so by Quakers and others was a serious constraint on conducting everyday business. Following the example set in relation to the bearing of arms, exemption was initially granted to Protestant dissenters: first, Quakers and subsequently Moravians and Separatists. In due course, around the middle of the nineteenth century, a choice was made statutorily available to all, with or without religious belief: a solemn affirmation could be made as an alternative to a declaration that implied recognition of a deity.

1.4.1.3

Exemption from Vaccinations

The actual term ‘conscientious objector’ was probably first formulated in the mid-19th century in the context of parental resistance to a mandatory requirement that they ensure the vaccination of their children—particularly those attending public schools—against smallpox and measles. The term was so framed to distinguish those who refused on grounds of religion or conscience from those who did so for any other reason, a distinction which continues to be of utmost importance. It was the introduction of ‘conscience’ into legislation that was all important: recognition in law that the will of the autonomous individual could, and in certain circumstances

37

See, the Law Reform Commission of Ireland, Report on Oaths and Affirmations, 1990, (LRC 34-1990), at pp. 4–5. See, further, at: https://mccarthy.ie/wp-content/uploads/2020/05/LawReform-Commission-Report-on-Oaths-and-Affirmations-1990.pdf. 38 Ibid, at p. 6.

1.4 Parameters

27

should, prevail over legislative intent directing universal provision for the public good. This extension of the principle was significant: it shifted the legal basis from being based on membership of a designated religion to recognition of a free-standing right to exemption on the basis of a personal but cogent belief; in relation to health matters; and as applied to third parties. However, the acknowledgment that a citizen could be excused from a universal legal obligation binding on all fellow citizens— intended to confer a uniform public benefit—if he or she objected for cogent reasons of personal conscience, remained consistent with the traditional rationale for conscientious objection. It has been the extension of those grounds beyond incidences of citizenship—to include, for example, healthcare workers refusal to engage with abortion procedures—that has come to pose problems in terms of establishing coherence in the grounds for contemporary conscientious objection, justification for its potentially extensive application and boundaries for its role in a democratic society.

1.4.2

Broadening the Parameters: The De-Criminalisation of Abortion, Homosexuality and Prostitution

The process of developing modern public policy on the role of conscientious objection in relation to a widening spectrum of morality freighted issues, began with its application to abortion. Wrestling with this aspect of women’s reproductive rights provided the strategic bridge between the traditional role of conscientious objection in relation to oaths and non-combat and its contemporary application to LGBT matters and potentially thereafter to a range of contemporary public health, social care and other contexts.

1.4.2.1

Reproductive Rights

Recognition of women’s entitlement to control the reproductive process as a basic human right, acknowledged by CEDAW,39 was a long time coming.40 It now confidently encompasses a bundle of rights including: access to sex education; family planning counselling; use of contraceptives; access to relevant information and health services; and the right to choose to terminate a pregnancy. This bundle, while clearly a positive development for any democratic society has, more so than anything else, done much to revolutionalise the gender construct of ‘woman’, reset

39

See, Convention on the Elimination of All Forms of Discrimination against Women, Articles 10 and 16. 40 See, further, at: https://www.ohchr.org/documents/publications/nhrihandbook.pdf.

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

the social parameters for ‘family’, ‘father’ and ‘spouse’ and probably contributed significantly to the content and trajectory of the ‘culture wars’.

Decriminalisation As with many other areas of public policy, the modern role of the conscientious objector began with resistance to matters being removed from the list of proscribed criminal activities i.e. matters indicative of good citizenship.41 Abortion and other morality laden activities—including prostitution, homosexuality, euthanasia and suicide—represented for many at that time the type of conduct condemned by Church and State as violating some of the more basic premises of a Christian society; premises that live on in the U.S. culture wars. Decriminalisation drew a line between Church and State on these matters, attracting vociferous objections from the former, including Pope Paul II42 and others who resisted the re-classification from public to private morality. Abortion, for long widely criminalised, became incrementally legitimised: in a reverse form of conscientious objection, doctors were gradually legally exempted from legal sanctions and permitted to follow their consciences by performing abortions in cases where women had suffered rape, incest, had a foetal deformity or where health complications endangered their lives; the pace of legitimisation being increased by public health care concerns such as accompanied the thalidomide drug scandal. In the U.S. abortion has been firmly established as a right since Roe v. Wade, even if individual states have begun restricting access. In Europe, however, the ECtHR has stopped short of recognising it as an absolute right and instead has settled for ruling that “the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion”.43 The process of de-criminalising homosexual relationships began in the mid-1960s and rippled across the developed nations in the following decades with Ireland among the last to take that step in 1993. This progression was assisted by the forming of gay groups, some notable riots (e.g. the 1969 Stonewall riots in New York), and the effectiveness of public protest marches in all countries. While conscientious objectors for the most part were prominent in resisting change it may

See, for example, Pope John Paul II: “The legal toleration of abortion or of euthanasia can in no way claim to be based on respect for the conscience of others”, EVANGELIUM VITAE, (25th March 1995), at para. 71. 42 Ibid, where Pope John Paul II states: 41

Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection (at para. 73). 43 P. and S. v. Poland, Application No. 57375/08, (2012) at para 99. See, also, A. B. & C. v. Ireland, Application No. 25579/05, (2010) and Tysiac v. Poland, Application No. 5410/03, (2007).

1.4 Parameters

29

be that they also played a role in facilitating it. For example, the plaintiff activists in Dudgeon v. United Kingdom,44 Norris v. Ireland45 and Modinos v. Cyprus46 (see, further, Sect. 3.6.5.3) each made a significant contribution to changing the law relating to homosexuality in their respective jurisdictions, but their actions—certainly in Northern Ireland—could conceivably be construed as conscience driven responses to the perceived undue influence of traditional religious values on their societies. The de-criminalisation process in this context, at least for most developed nations, could be said to have climaxed in 2011 with the resolution passed by the UN HRC recognising LGBT rights. More recently, de-criminalisation has been extended in some countries to include the repeal of laws relating to assisting suicide and their replacement with provisions permitting medically assisted death. This ‘right to die’ principle can probably be traced back to the 1975 Quinlan case47 in the U.S., a saga which finally terminated with her death in 1985, and was given significant endorsement in Europe by the Haas case in 2011.48 The legal sanctioning of conscientious objection for those with a professional involvement in the above matters, signified State acknowledgment of and concession to the continuing role of the Church in respect of public morality issues and signified also, to that extent, its willingness to compromise in upholding the neutrality principle.49 Paradoxically, however, this process of legalisation usually resulted in a more restrictive regime for conscientious objection. Permissive legislation often brought with it specific ‘conscience clauses’ which defined the circumstances for exemption and confined the personnel to whom it could be granted. In so doing such clauses displaced the discretionary latitude previously exercised by professional representative bodies and reduced the opportunities thereafter available for the exercise of conscience objections.

Assisted Reproduction Technology From the initial medical breakthrough with IVF treatment for infertility in the late 1970s, methods of assisted reproduction have attracted conscientious objections both from those who view such interference with the natural process of procreation as contrary to their religious beliefs and those who view any restriction on access to ART as a breach of their human rights. The range of health services triggering such a

44

Application No. 7525/76, (1981). Application No. 10581/83, (1988). 46 Application No. 15070/89, (1993). 47 In re Quinlan (70 N.J. 10, 355 A.2d 647 (NJ 1976). 48 Haas v. Switzerland, Application No. 31322/07, (2011). 49 Not in all countries, however, Sweden and Finland being among those that firmly maintained State neutrality by denying exemption from professional health care duties on the grounds of conscientious objection. 45

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

response was extensive—including sterilization, abortion, contraception, research on embryos, pre-implantation genetic diagnosis, and euthanasia—and continues to form a baseline for the contemporary conscientious objection of health professionals (see, further, Sect. 2.2.1.1).

1.4.3

Extending the Parameters by Analogy: Same Sex Issues Etc

Equality policy and principles as applied first to abortion, then to same sex issues and thereafter to such moral imperatives as medically assisted death and a host of issues relating to the intervention of science in ‘nature’ (genetically modified crops, cloning and human embryos etc) established and continues to propogate a new and fertile legal field with potential to generate a new world of conscientious objection and a considerable body of international jurisprudence.

1.4.3.1

Same Sex Relationships: Contemporary Policy

The policy forged in relation to abortion segued almost seamlessly across to same sex relationships, generating similar grounds for conscientious objection from similar religious adherents. In both, the changes to the legal regime from prohibition to protection generated many opportunities for those judicially recognised as conscientious: the latter resisting while social activists advocated for the same change in social mores and related law. The LGBT context, like its abortion counterpart, attracted challenges: from those who viewed the initial prescriptive regime as appropriately representative of their traditional Christian culture and the ensuing permissiveness as offensive; and from opponents who supported changes towards a more secular society and viewed the new regime as wholly in keeping with their secular beliefs. State neutrality, reinforced by equality legislation, required contemporary law and policy to hold these conflicting interests in equitable balance.

Legal Affirmation of Same Sex Relationships The shift from prohibition to permission, affirmation and protection was one that came in incremental steps, following the same stages in a process whereby the law had previously extended recognition to equal civil rights for black Americans and voting rights for women. Once same sex relationships were de-criminalised the equality imperative left little doubt about the trajectory and eventual outcome, any uncertainty was confined to the timing which varied across the jurisdictions, but not significantly.

1.4 Parameters

31

By the end of the twentieth century most of the developed nations had introduced laws prohibiting any discrimination on the grounds of sexual orientation in the recruitment of armed forces personnel or in their conditions of service. In England and Wales such recruitment was permitted from 2000 but not until the Equality Act 2010 did discrimination become legally prohibited (see, further, Sect. 4.5.2.2). The prohibition on blood donations from homosexual men, complicated by a fear of HIV infection, took a little longer: the ban was replaced by a deferral policy effective from 2011 in the UK (excluding Northern Ireland) and 2015 in the U.S. Legal recognition for the status of same sex partnerships or civil unions was introduced in one country after another at the turn of the century and with that status came protection for ancillary matters relating to parenting arrangements, pensions and testamentary entitlements etc. This proved to be an important stepping stone along the pathway to same sex marriage.

Same Sex Marriage The extension of marriage—traditionally a status that brought sex, procreation and religious belief into legal alignment—to accommodate same sex relationships was, for religious adherents and for others, a most profound challenge. Such adherents, particularly those belonging to the more fundamentalist branches of the traditional religions—Christian, Muslim and Judaism—were doctrinally opposed to this legislative initiative while many others also registered their conscientious objections before the introduction of the legislation and thereafter continued to do so. The fact that the process took some years is testimony to the strength of resistance from religious organisations and from others who feared the erosion of traditional social mores and their related institutions. The second decade of the 21st century saw most common law nations successively introducing legislation legalising same sex marriage: Canada doing so as early as 2005; England and Wales following in 2014; Australia in 2017; but Northern Ireland not doing so until 2020.

1.4.3.2

Legal Recognition for Trans Gender Identity

By the end of the second decade of the twenty-first century most developed nations had revised a traditional body of law, structured by Church and State around an understanding of gender as a being strictly binary, and instead ascribed legal status to gay, lesbian and trans persons. First sexual orientation, then gender identity and gender transitioning and then non-binary identity—the latter with some equivocation—gradually acquired recognition and legal status. These developments have propagated a whole nexus of associated issues which in turn have stimulated a corresponding expansion in the range of conscientious objections. As with abortion and LGBT matters, the law has struggled to grant recognition to trans gender status and to accommodate associated issues alongside corresponding binary system proceedings—marriage, divorce, adoption, pensions etc—but again the trajectory and

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1 Conscience and Conscientiousness: Principles, Concepts, and Parameters

outcome were pre-set by the prevailing authority of the equality and non-discrimination grundnorm.50

Procedures for Transitioning The issue of whether a transitioning process, from one gender to the other, could be considered sufficient to satisfy relevant authorities and entitle a trans person to official recognition of a change in gender status, has variously exercised the law and been the focus of a barrage of objections, some conscientious, in all jurisdictions currently being considered (see, further, Part III).

1.5

Conclusion

The increasingly numerous and diverse expressions of conscientious objection are largely a consequence of conflict between two inflexible paradigms: religion (including beliefs and matters of conscience) and equality (including non-discrimination). They each represent a self-contained, non-negotiable world view, focused on moral values but devoid of external reference points, which sets them on a collision course. Although both are prized as hallmarks of a liberal and democratic society, both also—arguably—have ideological tendencies, a leaning towards absolutism, requiring a certain rigidity of commitment and resolute application. The clashes occur along a morality freighted faultline that for many generations has fractured society in the developed common law nations, one in which the legacy of a shared and overtly Christian cultural heritage had already identified family matters—particularly those relating to the beginning and end of life—as areas of tension. As secularism and multiculturalism increased their hold on those nations, correspondingly increasing the threat to inherited cultural values, so those areas became more prone to disrupt. The legislative enforcement and extensive remit of the equality principle across Mrs Eleanor Rooseveldt’s “world of the individual person”,51 even if religion and beliefs were nationally shielded to a varying degree by the principle of State neutrality, rapidly exacerbated and focused morality related social tensions. There is increasing evidence to indicate that some political leaders are currently engaged in strategies to defuse this situation by extending the carveouts from the requirements of equality and non-discrimination legislation, strategies which may serve to compound issues of inequality. This introductory chapter suggests that the phenomenon of conscientious objection should be viewed against this background, as expressions of dissent: from those

50

See, Kelsen (1961). See, address by Mrs Eleanor Roosevelt, for the Church Peace Union, “In Your Hands: A Guide for Community Action on the 10th Anniversary of the UDHR” (New York, 1958).

51

References

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whose beliefs, representative of their traditional Christian cultural heritage, are perceived by them as being compromised by new social mores; and from those compromised by legislation universally applicable and for the public benefit but disadvantageous to a minority. The next chapter considers how conscientious objection compares with other means of expressing dissent such as social movements like Black Lives Matter, Me Too and the ‘anti-vaxxers’.

References Adenitire J (ed) (2019) Religious beliefs and conscientious exemptions in a Liberal state. Hart, Oxford Adenitire J (2020) A general right to conscientious objection. CUP Esau AJ (2000) Islands of exclusivity’: religious organisations and employment discrimination. UBCL Rev 33:719 Esau AJ (2009–2010) Islands of exclusivity revisited: religious organizations, employment discrimination and Heintz v. Christian Horizons. Canadian Lab Emp Law J 15:389 Freeman HA (1958) A remonstrance for conscience. Pa Law Rev 106(806):826 Habermas J (2006) Religion in the public sphere. Eur J Philosophy 14(1):1–25 Hume D (2004) an enquiry concerning the principles of morals (1751). Kessinger Publishing Company Kant I (2013) Lectures on ethics (1930). CUP, Cambridge Kant I (2019) The groundwork of the metaphysics of morals (1785). OUP, Oxford Kelsen H (1961) General theory of law and state, Russell Leigh I (2018) The Legal recognition of freedom of conscience as conscientious objection: familiar problems and new lessons. In: Ahdar R (ed) Research handbook on law and religion. Edward Elgar, pp 378–396 Mill JS (1869) On liberty. Longman, Roberts, & Green Co, London Rawls J (1971) A theory of justice. Harvard University Press, p 383 Scruton R (2006) Arguments for conservatism: a political philosophy. Continuum, London, p 142 Wicclair M (2011) Conscientious objection in health care. CUP, Cambridge, p 21

Chapter 2

Dissent and the Common Law Nations: Pluralism and Objecting Conscientiously

Abstract This chapter begins with a brief overview of the shared cultural foundations of the Part III common law nations, identifying the moral imperatives and associated nexus of conscientious objections seemingly derived from that context. It considers the extent to which that background, with its overlay of Christianity, shaped a role for this principle. It then explores the relationship between democracy and dissent. It identifies and contrasts the various forms of civil disobedience— social movements, activism etc—that differ from conscientious objection and examines the characteristics of the “culture wars”. It argues that the right to dissent—and the ancillary right to conscientious objection—can be crucial for asserting and preserving the cultural identity of minority groups but that a counterbalance is also needed if social cohesion is to be sustained. It considers pluralism: the right of minorities to challenge the status quo; the duty of the State to protect its citizens and accommodate diversity. It considers the constituent elements of ‘civil society’, its relationship with democracy and assesses the central role of ‘citizenship’. The chapter concludes by examining the relevance of the rule of law and outlines the relevant human rights framework, noting the salience given to equality and non-discrimination legislation in all Part III jurisdictions.

2.1

Introduction

Immanuel Kant warned that for those whose dissent emanates from the beliefs of an historical faith there is “the danger of disobedience to a human duty which is certain in and of itself” and that to do so would be “unconscientious”.1 For the jurisdictions profiled in Part III, this warning proved only too prescient; where the contemporary parameters lie for legitimate dissent, in a liberal democratic society, is a matter of increasing uncertainty. The tension between their traditional Christian cultures, and the beliefs or lack thereof represented in the flux of new and emerging faith systems

1

Kant (1992), p. 175.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_2

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2 Dissent and the Common Law Nations: Pluralism and Objecting Conscientiously

now to be found within their pluralistic societies, would seem destined for continued legal conflict. This chapter begins with a brief overview of the shared cultural foundations of the Part III common law nations, identifying the moral imperatives and associated nexus of conscientious objections seemingly derived from that context. It considers the extent to which that background, with its overlay of Christianity, shaped a role for this principle. It then explores the relationship between democracy and dissent. It identifies and contrasts the various forms of civil disobedience—social movements, activism etc—that differ from conscientious objection and examines the characteristics of the “culture wars”. It argues that the right to dissent—and the ancillary right to conscientious objection—can be crucial for asserting and preserving the cultural identity of minority groups but that a counterbalance is also needed if social cohesion is to be sustained. It considers pluralism: the right of minorities to challenge the status quo; the duty of the State to protect its citizens and accommodate diversity. It considers the constituent elements of ‘civil society’, its relationship with democracy and assesses the central role of ‘citizenship’. The chapter concludes by examining the relevance of the rule of law and outlines the relevant human rights framework, noting the salience given to equality and non-discrimination legislation in all Part III jurisdictions.

2.2

Common Law, Christianity and Culture: A Shared History and a Shared Basis for Dissent

The common law jurisdictions profiled in Part III evolved from the same cultural context. Their former roles in the British Empire meant that they grew to share much more than the discipline of the common law: language, Christianity, parliamentary democracy, modes of governance, cultural and social mores were all in the mix. This was a shared and cohesive culture, built upon much the same matrix of common law principles and Christian moral imperatives. A template was thus established for the development over centuries of similar societies bound together by the same morality and values. It was a process that necessarily also prepared the ground for a not dissimilar jurisdictional response to the legal and moral challenges presented by emerging changes to established social mores and set the context for the contemporary role of conscientious objection.

2.2.1

The Common Law Jurisdictions: A Shared Cultural Heritage

The imperial blueprint that travelled with the forces of the British Empire to all jurisdictions presently being considered is most usually thought of in terms of

2.2 Common Law, Christianity and Culture: A Shared History and a Shared Basis. . .

37

administrative structure. This comprised a fairly uniform system of parliamentary government, of law and judiciary, of institutional machinery, language and customs that are still recognisable features of the bonds that unify this most developed group within the commonwealth of nations.2 One important aspect, for present purposes, of that shared common law experience was a reliance on the doctrine of precedent. This facilitated the growth of a shared jurisprudence, as the judiciary in one common law jurisdiction applied principles drawn from case precedents established in another where there were matching circumstances,3 a process which promoted a common approach—such as to conscientious objection. This common genesis is also significant for present purposes because of provisions in international instruments that require States to respect and protect cultural identity. Their shared cultural heritage was one in which Christianity and the common law provided the framework for protecting social mores and for developing related legislation, particularly as regards family and sexuality matters. It is physically evident in the mosaic of churches, mainly Catholic or Protestant, that have spread much the same web of parishes, ministers/priests and parishioners across many lands, and is evident also in the music, literature, the parks, charitable foundations and in the many public monuments, emblems and customs which comprise a layer of cultural artefacts overshadowing that of all other religious communities. These continue to be highly visible reminders of the British Empire, evidence of shared origins forming the underpinning cultural foundations of the common law nations.

2.2.1.1

Moral Imperatives & Dissent

Christian principles established the core moral imperatives that came to inform the law in the jurisdictions being considered. An agreed consensus as to what constitutes morality, immoral conduct and ‘sin’ permeated the justice system of the common law nations to become, in particular, cornerstones in their family law jurisprudence and in the values of their not dissimilar societies. From that central reference point the imperatives would seem to have been contiguously extended by analogy—to accommodate matters relating more broadly to ‘life’—in keeping with the advances of science. Sometimes overt and unavoidable, other times nuanced and sublimated, these ever present, moral imperatives when encountered serve to crystallise an ethical dilemma. In recent times they have given rise to much the same set of legal issues arising in all jurisdictions, as might be expected given their history of immersion in the same Judeo Christian ethos, and have become a primary source of dissent in all common law societies.

2

Ireland, in fact, is not among the 52 countries that now constitute the commonwealth. Most notably permitting the cross-jurisdiction adoption of principles such as audi alteram partem, nemo judex debet esse in proprio sua causa, and res judicata.

3

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2 Dissent and the Common Law Nations: Pluralism and Objecting Conscientiously

Moral Imperatives: Violence Related Opposition to war has been and continues to be the iconic rallying cause for conscientious objectors. More recently, this has been broadened to accommodate a focus on ancillary aspects such as inhuman treatment, extraordinary rendition and detention without trial, and on methods such as execution by drone strike and deployment of chemical weapons. The use of capital punishment and corporal punishment, (whether by teachers in schools or by parents in the family home), have also been standard issues for objectors. This antipathy to violence may, for some, be extended to encompass cruelty to animals: including opposition to ‘factory farming’ living conditions and to inhumane slaughter practices.

Moral Imperatives: Sex Related The list of sex related matters generating taboos and moral opprobium over the years is long (e.g. prostitution, single mothers, homosexuality) but currently is mainly focused on gay marriage, other LGBT concerns and transgender matters. Sexual relationships, defined for centuries as heterosexual—for all legal, cultural and religious purposes—is no longer so confined and this has engendered a nexus of issues, of which gay marriage has now become the leading moral imperative. While the latter causes angst and protest among many conservative Christians and Jews, this pales in comparison to the virulent reaction it provokes among some of their Muslim counterparts as demonstrated in incidents such as the Orlando gay bar massacre4 in the U.S. • Sin The concept of ‘sin’, religion’s most basic enforcing mechanism, extended to brand a range of conduct designated by Church and State as ‘profane’ and ‘heinous’, being both criminal and sinful. Conduct regarded as sinful was generally not confined by any religion to transgression of beliefs but included most behaviour that would be construed as breaching secular laws or which in ethical or morality terms could be viewed as ‘bad’. Such prohibited conduct policed the personal life of every individual, mapping out approved relationships, legitimate means of procreation and rules for what was perceived to be the properly constituted family. • Sex The sin of illicit sexual relations—those not conducted between adult heterosexuals, for reasons of procreation and within a marital relationship—was well embedded in Christianity and regulated by statute in the common law nations. One incidental consequence of this was the apparent need to classify types of sexual

4

The June 2016 attack in Orlando, Florida was perpetrated by a Muslim who proclaimed allegiance to ISIS.

2.2 Common Law, Christianity and Culture: A Shared History and a Shared Basis. . .

39

activity—prostitution, buggery/sodomy, paedophilia etc—which seems to resonate with the contemporary classifications that now structure our approach to SOGI matters and more generally towards the LGBT community and its constituent parts. Of greater, deeper and more long-lasting significance have been the connotations of immorality that came to be associated with non-marital sex and non-binary gender matters; for some, affirmation of that sinfulness came with the outbreak of AIDS. Fear of being branded as sinful, to be tainted with the smear of perversion, were among the obstacles delaying social and legal acceptance of SOGI issues in the common law nations. • Family Law Family law in the Part III jurisdictions evolved within a common law context in accordance with the structures, principles and judicial precedents established in England and Wales. That context was one in which Church rather than State initially undertook responsibility for family law matters: births, marriages, sexual relationships, parenting, dying and death were all areas that for countless generations were administered in accordance with religious laws by denominational clergy; for some religions—mainly Muslims and to a lesser extent Jews—this continues to be the case. Over the centuries, their Christianity and pooling of case precedents gave the common law nations a shared understanding of what constitutes a family and of relationships judged to be sinful or virtuous.5 As Lord Finlay LC commented in Bowman v. Secular Society Ltd., when reflecting on previous centuries of case law:6 It has been repeatedly laid down by the Courts that Christianity is part of the law of the land, and it is the fact that our civil polity is to a large extent based upon the Christian religion. This is notably so with regard to the law of marriage and the law affecting the family.7

This developmental framework continued well into the twentieth century and even now much family law—certainly the basic principles, rules and concepts—can still be read across those jurisdictions fairly seamlessly. The disengagement of the Church from its role as arbitrator and custodian of values in family matters, while legally complete, is far from constituting a complete severance as far as religious organisations and adherents are concerned. For them, each and every legal step away from the traditional religious frame of reference for ‘family’ (from divorce to same

5

A long catalogue of cases beginning with De Costa v. De Paz (1754) 2 Swans 487, Chancery, including Lawrence v. Smith, Murray v. Benbow (1822) The Times 2 Feb. 1822, Briggs v. Hartley (1850) 19 L. J. (Ch.) 416, and ending with Pare v. Clegg (1861) 29 Beav 589, 54 ER 756, established that “the Courts will not help in the promotion of objects contrary to the Christian religion”. 6 [1917] AC 406 (H.L.). 7 Ibid, citing: Briggs v. Hartley (1850) 19 L. J. (Ch.) 416; Cowan v. Milbourn (1867) L. R. 2 Ex. 230; De Costa v. De Paz (1754) 2 Swanst, 487; and In re Bedford Charity (Part II1819) 2 Swanst. 470, 527.

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sex marriage) and for ‘parenting’ (from single to same sex parenting) generates dissent and provides cause for conscientious objection.

Moral Imperatives: Health The fact that women’s reproductive rights—access to family planning, abortion, and contraceptives, etc—are statutorily confirmed, removes them from legal equivocation: they are now firmly established civil rights; though for many they remain morally contentious. For some of the latter it is the bare fact of legalisation—the stage at which an abortion procedure may be available or when surrogacy arrangements confer parental rights on non-gestational parents—that prompts their conscientious objection.

Moral Imperatives: Education Together with family and parenting matters, the education of children has always been of crucial importance to all religions. • Public Schools The inclusion in school curricula of values, information or theoretical constructs perceived as being non-compliant with religious doctrine, is a constant cause of protest from religious parents. This is matched by corresponding protests from secularist parents objecting to the exposure of pupils to ceremonies, icons or prayers that are not part of home life but are routinely included in the life of some public schools. • Faith Schools In order to better ensure a streamlined inter-generational transmission of denominational values and beliefs, some religions are reverting to initial pactice and seeking to control the education of children by segregating their schools from the public educational system. Increasingly, this approach is being pursued by the Christian, Muslim and Judaism religions, aided by government policy and funding. The fact that in some such schools their curricula content, ethos or practices— particularly regarding gender differentiation—conflict with national values, norms or laws, is a not infrequent criticism made by regulatory bodies and one that tends to generate conscientious objections from parents. Moral Imperatives: ‘Life’ Related The intervention of science or medicine in matters considered to be the responsibility of a higher authority—God or ‘mother nature’—has always been a source of provocation for some.

2.2 Common Law, Christianity and Culture: A Shared History and a Shared Basis. . .

41

• IVF Techniques for assisting human reproduction, and for obstructing or terminating it, have attracted consistent opposition from many with religious beliefs. The law has been clear, however, that neither an entitlement to marry and to found a family, nor to a private and family life, nor any other entitlement, implies a right to procreation.8 That being the case, legislators and courts have at best equivocated when addressing the issue of access to IVF services etc. Nonetheless, the fact that such services are available to those who can afford them guarantees a continuing level of opposition. • Medically Assisted Death The claim that there is a right to die, and to be medically assisted in doing so, highlights an area of contention that has exercised the judiciary in all the jurisdictions presently being considered: how to align such a right with conscientious objection and with the fundamental Hippocratic principle—dictum primum non nocere (first do no harm)—has proved challenging. Equally challenging has been—and continues to be—the implacable opposition of religious organisations. While Islam and Judaism cannot condone medically assisted death, the Catholic Church has been vociferously campaigning against it, most recently declaring that “euthanasia . . . is an intrinsically evil act”, and that complicity by “any formal or immediate material co-operation in such an act is a grave sin against human life”.9 In particular the USSC and the ECtHR have had to navigate the complexities involved in the principles of personal ‘autonomy’, ‘privacy’ and ‘dignity’. In Gonzales v. Oregon,10 for example, the USSC ruled that Oregon’s Death with Dignity Act was constitutional and the provision of medical assisted suicide had a “legitimate medical purpose”. • Genetic Modification/Editing This amorphous zone of uncertain morality does not readily generate justiciable issues unless or until a patent application is lodged in court when, as in the Canadian ‘oncomouse’ saga (see, further, Sect. 7.3.4), moral contention can quickly erupt.

8

See, for example: the ECtHR ruling in Sijakova v. The Former Yugoslav Republic of Macedonia, Application No. 67914/01, (2003). 9 See, Congregation for the Doctrine of the Faith, ‘Samaritanus Bonus: On the Care of Persons in the Critical and Terminal Phases of Life’, 2020, at: http://www.vatican.va/roman_curia/ congregations/cfaith/documents/rc_con_cfaith_doc_20200714_samaritanus-bonus_en.html. 10 546 U.S. 243 (2006).

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2.3

2 Dissent and the Common Law Nations: Pluralism and Objecting Conscientiously

Democracy and the Common Law Nations

In the Part III jurisdictions—established and maintained by the military might of the British Empire—diversity and pluralism were inevitably present from the outset, but so also was dissent. This was evident: within the Christian colonisers, between Catholics and Protestants and against minority groups such as Quakers; without, in opposing other religions such as Hindus and Muslims; and in the persecution or conversion of the ‘heathens’ that constituted the indigenous population in many of those countries. Nonetheless, the fact that imperial rule brought with it an insitutional and administrative model, which in time allowed for the transference of parliamentary politics and an independent judicial system, provided the basic framework for the growth of their now democratic societies.

2.3.1

Democratic Society

Cultural homogeneity within and between the common law countries, an inevitable consequence of colonialisation, was promoted by their adherence to the same Christian values and beliefs which infused the formulation of constitutions, legislation, legal processes and judicial decisions. It became manifest, as noted above, in their adherence to a shared template of moral imperatives. The Christian ethos—largely Protestant based—that characterised the British colonial administration, informing the civic morality of its settlements, inevitably laid the foundations for the current divisive disputes that are now such a feature of democratic society, mainly in the U.S. but also to a varying degree in all the common law jurisdictions. An awakening socio-political awareness, initially focused broadly on matters of class and status, sectarianism, capitalism, gender and sexuality, equality and non-discrimination, then distilled into the contemporary agenda of moral imperatives represented by the current clashes over issues such as abortion, gay marriage and genetic engineering, would seem to flow from that particular ethos and to provide the raw materials for waging the ever-extending culture wars. These disputes, often proxy sublimations of fundamental differences rooted in religious belief, have become a general characteristic and an inescapable stimulus for conscientious objections. That characteristic is accompanied, in some jurisdictions more so than in others, by another—a residual toxin, perhaps derived from colonialism per se—systemic racism. In the U.S., where it is most apparent, this is further compounded by the experience of two centuries of the slave trade11 and the consequences of civil war.12

11

See, further, at: https://www.theguardian.com/news/2019/aug/15/400-years-since-slaverytimeline. 12 See, further, at: https://www.britannica.com/event/American-Civil-War.

2.3 Democracy and the Common Law Nations

2.3.1.1

43

The Culture Wars

Issues of sexuality are the defining battleground for the current phase of the culture wars and may have been so from the outset, while moral imperatives relating to ‘life’, particularly its beginning and end, have always been of central importance. The reason why the ‘wars’ have grown to become so socially divisive is partly a reflection of the rise in the number of citizens who are non-Christian and of others who are firmly irreligious, leaving a large conservative minority to become increasingly defensive. As secularism becomes more entrenched, accompanied by an ethos that encourages personal independence and responsibility, there has been a move away from collective, prescribed Christian values towards more issue related morality, an assertion of autonomous identities and more flexible social roles. There is now little prospect of any retreat from standard front-line issues—abortion, homosexuality etc—and every likelihood of new fronts opening up. This social phenomenon, spreading inexorably to other nations, has its origins in the U.S. where its socially polarising effect is steadily growing more toxic (see, further, Sect. 6.2.2.1).

Morality Issues Currently, in the jurisdictions considered, there is much contention over an ever extending spectrum of morality issues, all variously contributing to dissension and the culture wars. One end of that spectrum—consisting of abortion, euthanasia and gay marriage—is closely related to the Christian morality underpinning the law governing religious discrimination; the other—represented by issues such as gun control and women combatants in the armed forces—is only tenuously related; but a considerable number in the middle—including prostitution, genetic editing, embryo research, commercial surrogacy, gene patenting, IVF, transgender matters and many others—often seem to trigger, though not for everyone, the same religious/moral dilemma, one derived by contiguous extension from its roots in Christian morality and likely to prompt conscientious objections.

Proxies for Religious Belief Religion, belief and matters of conscience are becoming steadily more culturally sublimated: increasingly nuanced and diffused they permeate various public activities and forums in employment, education, health care etc. The sublimation may surface in the form of an expedient artifice: discrimination, generated in fact by religion or belief, may be passed off as an objection to sexual orientation (e.g. the objection of bakers with strong religious views to bake celebratory cakes for a gay couples) or concern for animal welfare (e.g. an objection to the non-stunning of animals slaughtered for food). Such objections may well be felt as conscientious but in fact are possibly more a reflexive assertion of traditional religious beliefs:

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ingrained social values acting as proxies for religious belief. The culture wars substitute for confrontation between religion and secularism on a fluctuating agenda of moral imperatives but while masking overt discrimination may also be blurring the autonomy required for authentic conscientious objection.

2.3.2

Dissent

A hallmark of a democratic society is its capacity to accommodate dissent: the threshold of tolerance for absorbing, if not addressing, the competing protests of minorities has become a distinguishing and capricious feature of modern democracies. The corollary being that those choosing the path of conscientious objection have had to learn the culturally contexted art of speaking truth to power.

2.3.2.1

Civil Disobedience

Thoreau, in his 1849 essay entitled ‘Civil Disobedience’, suggested that there were two sets of laws—those of men and the higher laws of God and humanity—where the former fall short of the standards of the latter then they should be disobeyed.13 He defended his refusal to pay taxes, as a protest against financing the Mexican War and the Fugitive Slave Law, by arguing that in both cases the government was plainly wrong, claiming that the citizen should act according to the dictates of their conscience—even if this is contrary to majority opinion or the laws of society—and should not “resign his conscience to the legislator”. A century later, Rawls furthered this approach in his definition of civil disobedience as a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies.14 For both, non-violent defiance of the law in order to keep faith with personal values was wholly compliant with conscience objection but differed from it by also being a means of calling public attention to laws that needed to be changed.

Conscientious Objection and Civil Disobedience As noted in the preceding chapter, an objection that is conscientious has its own distinctive set of characteristics that clearly set it apart from other forms of protest. These characteristics include: sincerely held values and principles that are cogent and substantive; triggering a private protest, grounded in that morality, to a matter which the objector’s conscience cannot ignore, avoid or comply with; a protest that

13 14

Thoreau (2016). Rawls (1999).

2.3 Democracy and the Common Law Nations

45

is non-violent and most usually takes the form of non-compliance with a law, rule or social norm; and one that does not seek public affirmation but only a personal reconciliation between conscience and conduct. Primarily, its distinguishing characteristic is its private nature. Brownlee comments that this characteristic—and its accompanying feature of not therefore being amenable to public accountability— distinguishes conscientious objection from civil disobedience.15 Thoreau and Rawls viewed civil disobedience as a pacifist form of social protest for a public benefit purpose. Its many forms include large-scale social movements, local, community based or niche causes, and time-limited or issue specific disputes. Its methods are equally varied, from sit-ins and boycotts to hunger strikes. There are now a great many organisations and social media platforms—Human Rights Watch, American Civil Liberties, Urban Institute etc—that play an important advocacy role in relation to matters liable to be a source of dissent and conscientious objection. Whistleblowers are also significant in this context (see, Sect. 1.3.1.2).

Social Movements Peaceful protests in furtherance of “worthy causes”, an accepted feature of modern urban life and one usually driven by a compelling matter of conscience, while being a legitimate means of expressing an objection to the status quo, cannot usually qualify as a form of conscientious objection. The most significant public policy issues of the nineteenth and twentieth centuries—including the abolition of slavery, temperance laws to curb alcoholism, universal suffrage and apartheid—were the pressing moral imperatives of their time and became causes championed by social movements that bitterly divided society. These and other such public protests against constraints imposed by government, or in relation to matters perceived as detrimental in some respect, are explicitly intended to effect social change. Such movements may be localised, national or global. Although often led or variously inspired by conscientious objectors, they differ from other forms of protest chiefly by their strategic reliance on public mobilisation and a willingness to employ social disruption as a means to leverage political change. The protests occurred in a democratic society, social disruption was minimal, law and order were not threatened and the protests were ultimately met with a constructive government response. In non-democratic societies, however, where government perceived itself threatened by acts of civil disobedience—notably in Tiananmen Square16 and during the rolling ‘Arab Spring’ revolution17—social Brownlee, K., ‘Conscientious Objection and Civil Disobedience’, at: https://hummedia. manchester.ac.uk/schools/soss/politics/research/workingpapers/mancept/BrownleeConscientiousObjectionandCivilDisobedience.pdf. 16 A student led protest against the Chinese Communist regime in 1989 that ended in the massacre of protesters by government troops. 17 A wave of revolution that began in Tunisia, spreading to Egypt, Yemen, Libya, and Syria during 2011–2014. 15

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movements fared differently. Currently, government response to global movements such Black Lives Matter and Extinction Rebellion have become a weathervane indicating tolerance levels for dissent in contemporary democratic societies.

Social Activists Social activists are those who work collaboratively with others to galvanise sufficient public opinion to effect targeted social change. They have been prominent in movements such as those for feminism and for LGBT rights. They differ from other forms of protesters chiefly by their willingness to employ social disruption and preparedness to resort to violence but primarily rely upon media presentations, marches and demonstrations, sit-ins, boycotts and sometimes on hunger strikes. The self-immolation of Buddhists monks would seem to a particularly poignant, visceral combination of conscientious objection and social activism. Gandhi, Martin Luther King, and more recently Greta Thunberg, have been prominent social activists, each assuming leadership of a cause they believed in, publicly arguing and advocating on behalf of that cause, and leading peaceful if at times socially disruptive demonstrations in support of a demand for change in related laws and policies. Unlike conscientious objectors, their role was not that of a selfeffacing, individual seeking to resolve a private moral dilemma. Instead they set out to draw public attention to a perceived social inequity: staging public demonstrations of non-compliance with current law and policy; appealing for the status quo to be rejected by the general public; and advocating for an alternative approach based on fundamental principles. In that respect—unlike conscientious objectors—Brownlee argues that those practising civil disobedience are more commendable as the former ‘makes no effort to raise her cause for collective deliberation’.18

2.3.2.2

Insurrection and Terrorism

Dissent, even in democracies, can take the form of extreme violence, sometimes directed against representatives of ‘the establishment’ and at other times involving seemingly random destruction intended to demonstrate a government’s inability to govern. This form of dissent differs from others by being devoid of any public benefit intent but is instead an act of defiance against the status quo; a warning that a minority, perceiving itself as victimised, will not tolerate further marginalisation.

18

Brownlee (2012), p. 30.

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47

Conscientious Objection and Ideological Violence Democratic society cannot accommodate any degree of congruity between these two forms of protest: a resort to ideological violence is a denial of democracy and an attempt to disable it. Rawls draws attention to this inherent incompatibility in his comment that: “any interference with the civil liberties of others tends to obscure the civilly disobedient quality of one’s act”.19 Those who deliberately employ violence in protest against others, who they perceive as imposing unwarranted restrictions on their beliefs or as a strategy for effecting social change, must be disqualified as conscientious objectors on the grounds of their being motivated by ideology rather than conscience. While ISIS provides the most recent and nortorious example of such an aberrant interpretation of protest, it is just the last in a long line—that stretches back to at least the Christian Crusades of the leventh century—of those acting violently while claiming to be motivated by conscience or ‘honour’. The latter being more appropriately represented by the likes of George Orwell20 and his role in the Spanish civil war or Thoreau21 and his imprisonment for non-payment of taxes as a protest against slavery. Many outbreaks of violent dissent within the western democracies preceded the current ongoing murderous ISIS campaign, and these were by no means confined to the common law nations.22 Of those that were, the U.S. suffered terrorist attacks before and after 9/11, including those by: the Black Panther organization (founded in California in 1966) against government institutions to assert the identity of black Americans; the Weathermen, or Weather Underground, a Marxist revolutionary group that carried out a series of bombings, jailbreaks, and riots from 1969 through the 1970s; and some seemingly random atrocities such as that perpetrated by Timothy McVeigh in 1995. The UK and Ireland, of course, endured 30 years of “the Troubles” when the IRA insurrection caused some 3000 deaths in Northern Ireland. More recently, New Zealand23 and England24 are among the Part III jurisdictions that have witnessed the massacre of civilians in attacks for or against Islamic fundamentalism. Although murderous violence constitutes an intolerable rejection of the values of a democratic society, it is often presaged by the failed efforts of genuine conscientious objectors. The ‘troubles’ in Northern Ireland, for example, can be traced back

19

Rawls (1999), p. 366. Orwell (1938). 21 Thoreau, H.D., ‘On the Duty of Civil Disobediance’, (1849), Elegant Ebooks, at: https://www. ibiblio.org/ebooks/Thoreau/Civil%20Disobedience.pdf. 22 Notably, the nihilistic ideology represented by the Baader-Meinhof gang (aka the Red Army faction) active in Germany during the 1970s-80s and the Red Brigade in Italy in the 1980s. 23 A terrorist attack on mosques in Christchurch New Zealand, on 15 March 2019, killed 51 people. 24 A terrorist attack in London on 7th July 2005 killed 52 people and injured more than 700 while an attack at the Manchester arena in May 2017 killed 22 people. 20

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to those whose initial protests regarding a justifiable concern for the suppression of Catholics were not heard by government, leading to that cause being taken up by the civil rights movement before it was hijacked to cloak the ideological aims of the IRA. It would seem that an imbalance of political power between majorities and vulnerable minorities is a feature of democratic societies and one that necessarily requires a high tolerance level for civil disobedience by those minorities, if their voices of dissent are to be heard and grievances addressed before resentment triggers violence and becomes a measure of democratic deficit in that society.

2.4

Civil Society, Citizenship, Pluralism and the Law

‘Civil society’ and ‘democratic society’ are not interchangeable terms: while the latter must necessarily incorporate the former, the reverse does not always hold true; Turkey and Egypt, for example, though democracies, limit, regulate and suppress nongovernment bodies.

2.4.1

Civil Society

Across many western or westernised nations there has been a growing demand for governments to put in place (and encourage others to do so) the institutions and infrastructures necessary to establish or consolidate ‘civil society’.25 While there is some uncertainty as to how this concept should be defined,26 most definitions require the free association of people in the pursuit of aims that complement the public benefit efforts of the State and result in a more coherent and engaged body politic. For present purposes it can be defined as: the aggregate of non-governmental organizations and institutions that manifest the interests and will of citizens or; individuals and organizations in a society which are independent of the government.27

2.4.1.1

Liberal Democracy and Civil Society

Judt, in his magesterial Postwar, refers to “the need to construct a morally aware civil society to fill the anomic space between the individual and the State”.28 The UN

25

See, Dictionary.com’s 21st Century Lexicon at: - https://www.coursehero.com/file/p37k6sn/2Dictionarycoms-21st-Century-Lexicon-defines-civil-society-as-1-the-aggregate/. 26 See, Bothwell (1997). 27 See, further, List et al. (2020). 28 See, Judt (2010), p. 695.

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adopts the same perspective when it declares that civil society is the “third sector” of society, along with government and business.29 The distinction being made by both is one that rests on a line being drawn between the interests and terms of reference of government and that of all others. Liberal democracy, the framework for all Part III jurisdictions, has sought to provide a political setting conducive to the flourishing of civil society.

Religion and Civil Society Religion, for all its emphasis on the private salvation of souls, has always done much to mediate and order the public space between citizen and State and this, as Schnabel and others30 have pointed out, has contributed to building civil society. However, religion, its organisations and adherents with their proven track record for inciting social polarization, clearly also have a capacity for achieving precisely the opposite. The contribution of religion to civil society can take many forms including: reinforcing respect for common values and institutions; raising awareness of social needs; setting standards and improving coping capacity; and putting in place processes for positive social interaction. In all the common law countries, religion— specifically Christianity—was responsible for building and staffing the basic health and education infrastructure that now delivers our public benefit services. Not until a new era was introduced by contraceptives, more generous welfare benefits and greater social mobility did religion’s contribution to civil society begin to fade.31 Thereafter, the increased secularisation of matters central to the traditional role of the Church in the community—marriage, education, parenting etc—inexorably weakened its social role and simultaneously provided religious adherents with a corresponding growing range of opportunities for conscientious objection. In modern times the vast range of religious buildings, artefacts, activities and services etc, raises questions as to how such an array of material that advertises the separateness, exclusiveness and competitiveness of organizations and their respective adherents could be conducive to promoting a collective sense of public good. Because of its capacity to emphasise difference—including through the socially divisive activity of proselytism—religion has proven to be challenging in the context of sustaining civil society. In particular, the response of religion—mostly the fundamental fringes of Christianity and Islam—to the change in social mores that has swept across the Part III jurisdictions in recent decades has exacerbated existing social divisions and multiplied the number of accompanying conscientious objectors.

29

See, further, at: http://www.un.org/en/sections/resources/civil-society/index.html. See, Schnabel and Giesen (2011), pp. 198–202. 31 See, Judt (2010), pp. 374–377. 30

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2.4.1.2

2 Dissent and the Common Law Nations: Pluralism and Objecting Conscientiously

Civil Society, Citizenship and Pluralism

Until the latter decades of the twentieth century, the characteristic hallmarks of an autonomous nation State—firm government control over matters such as borders, security, taxation, information, finance and self-governing laws—continued to typify most Part III jurisdictions. Since then, as the capacity of the State to exercise independent control over matters within its borders has shrunk, particularly its ability to generate the funds necessary to provide public benefit services required by the larger proportion of its population with dependency needs, there has been a corresponding shrinkage in its relationship with citizens. A trend exacerbated in the twenty-first century by a demonstrable State inability to perform what since the time Cicero has been recognised as its most basic duty—salus populi suprema lex esto32—in the face of economic recession, ISIS attacks and threats to public health. As regards the latter—and a precursor to the Covid-19 challenge—the ability of the State to safeguard the health of its citizens was tested by short, confined pandemics at the turn of the century. In 1997, Hong Kong experienced an outbreak of avian flu and in 2003 it was the epicentre of the SARS pandemic. Then in 2009 swine flu swept the world, followed in 2013 by the avian flu H7N9 which emerged from China. The State responded to these experiences and subsequent outbreaks of avian flu by taking early and drastic measures, involving the mass slaughter of the species concerned, within a geographical area, whether or not there was evidence of infection. Citizenship and civil society are necessarily complementary: one helps define the other; but sharing space is not the same as sharing responsibilities; citizenship and civil society both require a level of commitment to common social values. A consensus on broadly shared values and an agreed balancing of interests would seem essential for civil society. To that extent, adherence to religion/beliefs/matters of conscience which mandate practices that conflict with citizenship requirements conflict also with those for civil society: it feeds a cultural dissonance that obstructs the essential civic virtues of trust and co-operation.33

Citizenship ‘Citizenship’ was defined by Turner as a “collection of rights and obligations which give individuals a formal legal identity; these legal rights and obligations have been put together historically as sets of social institutions, such as the jury system, parliaments and welfare States”.34 This definition implied that a citizen was legally recognised to be in a contractual relationship with their State, and had certain rights—of residence, to vote, to protection, to access public services such as courts, health care etc—and certain duties—to pay taxes, obey laws and serve in the national

32

Cicero, De Legibus III.3.VIII (‘the safety of the people ought to be the highest law’). See, Judt, T., Ill Fares the Land, op cit. 34 Turner (2000), p. 131. 33

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51

armed forces if called upon to do so. This contractual relationship, territorially based and with implied cultural affiliation, varied from country to country and in the same country over time, but it retained a sense of being founded on a bond of mutual and exclusive loyalty between State and citizen (see, Sects.10.2.2.1 and 11.4.1). The Rawls interpretation of citizenship would seem to sit comfortably alongside that of Turner. The former works from an assumption that in a democratic society its citizens will rationalise and accommodate differences in values and beliefs.35 For him, such a citizen is one who is accustomed to diversity and welcomes the fact that democracy requires everyone to find ways of interacting and co-operating under the same umbrella of principles and rights.36

Citizenship and Indigenous People Only relatively recently, in the CANZUS nations, have members of indigenous communities been granted citizenship in the countries which they inhabited for millenia. Their consequent lack of attachment to nation and to State is unsurprising, given the abuse and disregard with which they have historically been treated by both, but acquiring the status of citizen has placed them in the same position to claim conscientious objection as their fellow citizens. As has been said “by definition, the politics of Aborignal identity, culture and citizenship complicates the idea of citizenship in postcolonial societies, often challenging the basis of the very existence of the nation State . . . Aboriginal voice have been among the most insistent in the calls to reconstruct the social and political contracts that frame modern democracies”.37 It would be a mistake to overlook the importance of citizenship, and the associated if underdeveloped legal right to conscientiously object, in an indigenous context.

Citizenship, Civic Duties and Conscientious Objection Accentuated, perhaps, in the contemporary context of ‘the selfie generation’, it would seem that ‘society’ as with ‘nation’ has become a good deal less structured and coherent, with individuals more anomic in terms of loyalty and without any durable sense of belonging to a collective. This could be significantly impacting the reflexive sense of civic duty and role reciprocation between citizen and government that has characterised nation states for many generations. The space opening up is perhaps facilitating free-standing loyalties. New systems of belief seem to be flourishing, dissent from the status quo is endemic, and social media is feeding a ‘celebrity culture’ in which expressiveness is everything and individual consciousness is promoted. This new assertiveness of individuality and

35

Rawls (1993). Ibid, at pp. 228–229. 37 Wood (2003), p. 1. 36

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difference would seem to be strengthening a perceived right to conscientiously object, a right that is presently known to the law in only very restricted circumstances. Inevitably the law will have to broaden and recognise and respond to the escalation in individual causes of belief based dissent.

2.4.1.3

Pluralism

Pluralism places considerable importance upon protecting the cultural identity and equality of minority groups, it encourages their recognition, promotes their interaction, and welcomes their enriching contribution to the texture of life. It implies a duty on the State to facilitate and promote opportunities for minorities, ethnic groups etc, to participate alongside and engage with the established culture and its related bodies and interests in the public arena. This entails making room available for the interests of emerging groups both structurally and psychologically: providing a more level playing field and evidence of welcome; employing culturally affirming strategies to achieve an ongoing balancing of various community interests. However, it also resolutely requires that they should function under the umbrella of the national cultural heritage, the primacy of which attracts State support. Inescapably, despite the checks and balances to ensure that equity prevails among so many independent entities, and the requirement that each and all respect that national primacy, there will be disputes some of which will take the form of conscientious objection. This policy is well represented by the settled approach of successive U.S. governments towards immigrants; a policy abandoned during the latter part of the Trump Administration. The premium placed upon interactive diversity promotes the ‘melting pot’ cultural exchange that results in the values and cultural practices, the food and lifestyle, of migrant communities being absorbed into mainstream society. Pluralism requires the identity of a cultural minority to be respected by providing opportunities for its members to express their distinctive identity through related practices but this is conditional upon their loyalty to the nation and respect for its laws and institutions.

Pluralism in Practice As has been pointed out, ‘many minority populations have attempted to avoid, in various ways, assimilation becoming erasure’.38 The fear is that they, and/or their children, will be wholly absorbed into Western culture and lifestyle, that jettisoning generations of family and community values and practices may be the price they have to pay for migration. For immigrants, therefore, pluralism may be perceived as a threat as it requires the values of an immigrant culture to give way to those embodied in the laws of the host nation. Culture clashes as illustrated in

38

See, Herman (2011), p. 51.

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53

conscientious objections relating to manifesting religious identity through clothing and customs, or as regards religious practices in employment, education etc, are consistently associated with pluralism.

Diversity Civil society is predicated on the belief that it is for the greater good if as broad a mix of social groups as possible are enabled to interact equally. This requires genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs and all forms of cultural expression. This affirmation of diversity assumes that a healthy liberal democracy is one that allows many autonomous legal entities to coexist and prevents authority from being located in one source—a single political party, institution or ruler—but instead faciltates a sharing of power and accountability. It requires not just peaceful coexistence or mutual tolerance but purposeful interaction between different social entities. However, while placing a high premium on the retention of the many different and separate identities it also attaches importance to enducing their participation as part of a greater whole. The promotion of diversity is dependent upon the checks and balances that both preserve the integrity of a nation’s cultural identity and facilitate the healthy development of the many and varied independent entities that constitute a pluralistic society. A diverse but equitable civil society is one that welcomes and addresses the needs of as wide a spectrum of different people as it can reasonably accommodate. The importance of a nuanced policy, recognising that inequities require State intervention and adjustment in some areas more so than others, has led to a conclusion that ‘a one size fits all’ strategy for addressing social difference is inadequate and that policies such as ‘affirmative action’ (favouring the more marginalised) and ‘islands of exclusivity’ (exempting entities that are liable to be be unduly burdened), may therefore be justified. Such policies, however, will invariably provoke protests from those who, rightly, perceive themselves as being thereby relatively disadvantaged.

2.5

Law and Human Rights

It has been rightly said that “while universally agreed human rights, norms and standards provide its normative foundation, the rule of law must be anchored in a national context, including its culture, history and politics”.39 It is precisely the anchoring of law in the cultural context of the still largely Christian common law

See, ‘United Nations and the Rule of Law’, at: https://www.un.org/ruleoflaw/rule-of-law-andhuman-rights/.

39

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nations, and the bearing of international human rights on that context, which gives rise to much of the resulting conscientious objections that are examined in Part III.

2.5.1

Law

Law supports and sustains social cohesion by: asserting and protecting a nation’s culture and its associated emblems, icons, language and traditions; reinforcing its values and principles; policing its boundaries; and by setting the terms for negotiation with other societies. By legitimising the particular institutions, bodies, officials and processes that bind together the component elements of a society it enables that society to function as a coherent entity. It affords recognition and protection for the interests of minority groups through equality and non-discrimination legislation and the use of human rights provisions to accommodate diversity, and achieve a balance in circumstances of competing rights. It affirms and channels dissent, provides forums and rules for arbitration and legitimates occasions for conscientious objection.40 It also facilitates social cohesion by virtue of its integrative effect. Whether as cause or effect, the bonds that draw a society together are represented by its civil and criminal laws and mananged through the balancing of various sets of legal rights: the rights and reciprocal duties of each of the parties being statutorily established, delineated and moderated through related administrative bodies and enforced by the courts. In short, law plays an indispensible role in maintaining civil society in the Part III democratic jurisdictions.

2.5.1.1

Law and National Identity

Every society needs to rely on the predictable continuation of its familiar institutions and their functions. Law lends itself to furthering this goal by asserting and protecting a nation’s culture and its associated emblems, icons, language and traditions, reinforcing its values and principles, policing its boundaries and by setting the terms for negotiation with other societies. By legitimising the particular institutions, bodies, officials and processes that bind together the constituent elements of a society, it enables that society to function as a coherent entity. It affords recognition and protection for the interests of minority groups through equality and non-discrimination legislation and the use of human rights provisions to accommodate diversity and achieve a balance in circumstances of competing rights. In relation to religious entities, law confers special privileges—for example, exemption from taxes, equality and non-discrimination legislation—giving rise to objections from secularists on the grounds that this breaches state neutrality.

40

See, for example, Raz (1979, 1994).

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The law also facilitates cohesion by virtue of its integrative effect. Whether as cause or effect, the bonds that draw a society together are represented by its civil and criminal laws and managed through the balancing of various sets of legal rights: the rights and reciprocal duties of each of the parties being statutorily established, delineated and moderated through related administrative bodies and enforced by the courts. This is not always the case, however, as changes in social mores can often lead to a law no longer accurately reflecting the circumstances it was designed to address; in addition, universally applicable laws, intended to rectify a problematic issue for the majority will often prove relatively disadvantageous for a minority. Moreover and increasingly, it would seem that the integrative effect of legal rights is being counterbalanced by a tendency for a rights-conscious approach towards complex problems, which is having a fragmentary effect on social cohesion.

Equality and Religion/Belief/Conscience For religion, its organisations and adherents, there has been no greater challenge in recent years than the spreading ambit of equality and non- discrimination law and the consequent legitimation of activities regarded for generations as sinful and criminal. There is now a growing slippage between Church and State on an agenda of contemporary social issues. Gay marriage—among many other contemporary morality based issues—has exacerbated the tension between the right to religion/ belief/conscience and the right to equality.

2.5.1.2

Individual Identity

On both sides of the Atlantic a growing body of jurisprudence now recognises the importance of the autonomy of the individual: his or her rights to privacy, to dignity and to self-determination. Human rights law, particularly equality and non-discrimination, has driven a tendency towards dis-aggregation, to grant a new weighting to the rights of the individual. One aspect of this can be seen in the increasing range of situations in which an individual may now lay claim to an unwarranted infringement of their religion/beliefs/conscience; such infringements and associated conscientious objections—unlike formerly—may, as in the case of vegetarianism, have no connection to citizenship.

2.5.2

Fundamental Rights

Some human rights are more important than others. While many are crucial for reasons to do with preservation of life, health and justice, the following have a direct bearing on conscientious objection.

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2 Dissent and the Common Law Nations: Pluralism and Objecting Conscientiously

Right to Freedom of Expression

Article 19 of the UDHR establishes the right to articulate opinions and ideas without fear of retaliation, censorship or sanction and directs that it may be exercised through any media and regardless of frontiers. As one of the principal hallmarks of a democratic society, this right is particularly important for conscientious objectors. It is relied upon by those who need to advocate on behalf of a cause, comment on events or to challenge an abuse of power and often functions with other rights such as the freedoms or religion or association. In particular it licences the public manifestation of private religious belief, religious identity and the exchange of religious and secular views.

2.5.2.2

Right to Freedom of Association/Assembly

Initially established by Article 20 of the UDHR, the freedom of association protects the collective pursuit of common goals. It also provides for the right not to be compelled to belong to an association. Essentially it protects the discretion of an individual to form, join or leave an association without interference from the State. It is crucial for religious organisations as it is for those who wish to associate for reasons of shared beliefs or matters of conscience.

2.5.2.3

Right to Freedom of Religion

Article 18 of the UDHR, which declares the right to freedom of thought, conscience and religion, provides a platform for conscientious objection. Enjoyment of this right is necessarily entangled with such other rights and freedoms as those of expression and association/assembly. It includes the right: to have, to adopt or to change a religion or belief; to exercise religion or belief publicly or privately, alone or with others; and to exercise religion or belief in worship, teaching, practice and observance. It also provides for the right to have no religion and to have non-religious beliefs protected.

2.5.3

Rights to Private Life and to Social Participation

Certain rights, with particular relevance for conscientious objection, are those that recognise the autonomy of the individual, their life in the home with their family, and their life in society.

2.5 Law and Human Rights

2.5.3.1

57

Right to Marry and to Found a Family

Article 16 of the UDHR provides for the right of men and women of a marriageable age to marry and to found a family, in accordance with their national law, without hindrance due to race, nationality or religion. The right to found a family is absolute, the State is required to protect the family unit: there is no legal obligation on the State to provide the services that may be necessary for the right to be exercised; but any State intervention in family affairs is required to be in accordance with the obligation to respect the private and family life of its members.

2.5.3.2

Right to Education

As declared in Article 26 of the UDHR, this establishes that everyone has a right to education, accessible without cost at least until the secondary stage, including a parental right to determine their child’s religious education. It is vitally important as it provides a gateway for a future social role and economic security and also the means for facilitating an intergenerational transfer of culture, values and beliefs. Education is understood to mean the provision of factual information, objectively and impartially taught, including health and safety information relating to sex and the facts of life. This right has particular implications for faith schools, for defending the traditional culture and for the practise of religious belief in all schools, all of which generate conscientious objections.

2.5.3.3

Right to Employment

Article 23 of the UDHR establishes that everyone has a right to employment on reasonable terms. This is a right not a duty: individuals are free to choose not to work. In theory, neither a religious organisation nor a religious individual are entitled to impose restrictions upon others as to whether or not they may work, nor as regards when they may do so, the type of work they should seek, or the type of clothing they should wear if employed. The process of hiring and firing and conduct in the workplace provide the context for a high proportion of all conscientious objections.

2.5.3.4

Right to Health

Under Article 25 of the UDHR, everyone has the right to a standard of living adequate for their health and wellbeing and that of their family. This right has been interpreted to include sexual health and reproductive rights. It also extends to accommodate SOGI related issues. Some of the more acute conflicts involving conscientious objection in professional practice occur in a health context, not least in relation to the current issue as to whether or not it should be permissible to rely on

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the exemption privilege to avoid population immunisation programmes. Much of this hesitancy is a legacy from the late twentieth century scare triggered by the Wakefield41 fraudulent—and subsequently retracted—study on a spurious link between the Mumps, Measles and Rubella (MMR) vaccine and autism. There can be little doubt that in the present context of a global health pandemic, the conscientious objection of individuals to being vaccinated against Covid-19 presents a significant threat to public health and a challenge to the tolerance levels of a democratic society.

2.5.3.5

Right to Equality and Non-Discrimination

Article 7 of the UDHR is unequivocal in its pronouncement that all are equal before the law, all are entitled without any discrimination to equal protection of the law, and all are entitled to equal protection against any discrimination or any incitement to discrimination. This may be read in conjunction with the blanket provision in Article 2 that everyone is entitled to enjoy all UDHR rights and freedoms without distinction of any kind—such as religion/beliefs/conscience—or due to any form of status. It is the tension between equality and non-discrimination provisions and the right to freedom of religion/belief/matters of conscience that presents the most opportunities for conscientious objections.

Equality and the Indivdual Mrs Eleanor Roosevelt once noted that equality applies to:42 the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination.

In the intervening 60 years the equality principle has been applied to the range of settings she identified and to the many others generated by manufacturing, service and hospitality industries. It has come to have a bearing on subjects then beyond her contemplation such as climate change, the ever extending spectrum of SOGI related issues and on matters revealed by the advance of science including IVF, surrogacy and genetic modification. During that period the locus standi of the citizen—and his or her access to the courts, to an array of legal rights and to the legal aid necessary to exercise those rights—have also increased immeasurably. A resulting body of caselaw, from the objections of those claiming either a right to equality or that

See, further, BMJ, ‘Wakefield’s article linking MMR vaccine and autism was fraudulent’, (2011), at: https://www.bmj.com/content/342/bmj.c7452. 42 As quoted by Ignatieff (2017), p. 196, citing the Church Peace Union, “In Your Hands: A Guide for Community Action on the 10th Anniversary of the UDHR” (New York, 1958). 41

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they have been disadvantaged by its levelling effect, has accumulated in accordance with the pattern of varied settings that now constitute “the world of the individual person” and done much to shape contemporary democratic society.

Equality and Religion/Beliefs/Conscience Religion, although curiously not mentioned by Mrs Roosvelt, was then and remains now an important aspect of that world for many people and one that has found itself seriously compromised by the equality principle. Religious adherents in general protest that State application of the equality principle threatens to treat religion as just another social phenomenon to be managed and calibrated in line with, for example, manufacturing and industry; that this reductionist effect discounts the significance of transcendant beliefs that have supported civilisation for millenia (see, further, below). Rivers, in The Law of Organised Religions, has warned against any such ‘one size fits all’ approach, stating that:43 While the State may legitimately adopt a particular, more or less controversial, conception of equality, it should not impose such a conception uniformly on the whole of civil society. Protection from uniform State ideologies is one of the main points of collective religious liberty.

For fundamentalists in particular—whether Evangelical Christian, Orthodox Judaism or Sunni Muslim—the equality principle and other basic human rights precepts are diametrically opposed to some aspects of their religious doctrines. This interface provides a magnet for conscientious objection, as is currently obvious in relation to matters such as gay marriage, but it has also long been evident in established principles such as those that protected the rights of testators and parents to impose religious conditions on others.

Equality and Religious Organisations Religious organisations and adherents are to a varying extent statutorily exempt from many of the constraints of equality legislation and benefit from traditional privileges that continue to preference them relative to their secular counterparts. Schools and hospitals—and in some cases, commercial companies—if belonging to a religious organisations or person, are entitled to make matters such as service access and staff employment conditional upon compliance with the beliefs of that religious entity. Moreover, the State provides tax exemption privileges, possibly augmented by direct funding, to religious organisations in general and/or to some in particular. Then there is the matter of the growing number of faith schools. Established specifically to provide a religious alternative to state provision, they often benefit from preferential government funding arrangements but impose a religious filter on student admission 43

See, Rivers (2010), p. 136.

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and curriculum content and in some cases they function with disregard for matters such as gender equality and freedom of speech. Conscientious objections inevitably arise when religious adherents and organisations maintain that their beliefs require them to oppose matters upheld by the majority, matters legally mandated as indices of the public good in a democratic society. In recent years, in all modern developed nations, such beliefs have multiplied and become increasingly attenuated in accordance with Freud’s “narcissim of the small difference”44 and in so doing have correspondingly increased the opportunities for conscientious objections. Inevitably this has greatly impacted the world of Mrs Eleanor Roosevelt’s “individual person” in relation to those areas of everyday life—family matters, education, employment, health, commercial services etc— where the equality principle and religious beliefs intersect.

2.6

Conclusion

The white, Christian and largely Protestant cultural context which provided the framework for building the institutions that now govern contemporary society in the common law countries presently being considered has recently experienced some difficulty in sustaining the democratic credentials of the Part III jurisdictions. Although all are now complex, developed pluralistic societies, religion and belief continue to be the source of social division and dissent even if to a varying extent sublimated into culture wars. Challenges to government—civil disobedience in the form of social movements, activism and terrorism—have become a feature of all those jurisdictions as have an increased reliance on surveillance and anti-terrorism strategies. This chapter has argued that the shared cultural history of the Part III common law jurisdictions, in particular the overlay of Christianity with its distinctive code of moral imperatives, played a significant role in preparing the ground for the issues that initiated and continue to trigger much the same pattern of conscientious objections. Accommodating dissent, an indicator of a healthy democratic society, is crucial as a means for preserving the cultural identity of minority groups and for managing the lack of fit between law and newly emerging social mores and forms of belief in these long established and overtly Christian nations. As citizenship is being steadily but inexorably transformed, the scope and need for legally sanctioned conscientious objection to articulate morality based dissonance in democratic society is becoming more obvious.

44

See, Freud (1991), pp. 131 and 305.

References

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References Bothwell J (1997) Indicators of a healthy civil society. In: Burbridge J (ed) Beyond prince and merchant. Institute of Cultural Affairs International, Brussels Brownlee K (2012) Conscience and conviction: the case for civil disobedience. Oxford University Press, p 30 Freud S (1991) Civilization, society and religion. Penguin, London, p 131 and 305 Herman D (2011) An unfortunate coincidence: jews, jewishness and English law. Oxford University Press, Oxford, p 51 Ignatieff M (2017) The ordinary virtues: moral order in a divided world. Harvard University Press, Cambridge, p 196 Judt T (2010) Postwar: a history of Europe since 1945. Vintage, p 695 Kant I (1992) The conflict of the faculties, (1798). University of Nebraska Press, p 175 List RA, Anheier HK, Toepler S (eds) (2020) The international Encyclopedia of civil society, 2nd edn. Springer, Switzerland Orwell G (1938) Homage to Catalonia. Secker and Warburg, London Rawls J (1993) Political liberalism. Columbia Classics in Philosophy Rawls J (1999) A theory of justice, (1971). OUP, p 366 Raz J (1979) The authority of law: essays on law and morality. Clarendon Press, Oxford Raz J (1994) Ethics in the Public Domain. Oxford University Press, Oxford Rivers J (2010) The law of organised religions. Oxford University Press, Oxford, p 136 Schnabel P, Giesen P (eds) (2011) What everyone should know about the humanities. Publisher Unknown, Amsterdam, pp 198–202 Thoreau HD (2016) On the duty of civil disobedience, (1849). New Atlantis Enterprises Turner B (2000) Cosmopolitan virtue. In: Isin EF (ed) Democracy, citizenship and the global city. Rutledge, London, pp 129–147 Wood PK (2003) Aboriginal/Indigenous citizenship: an introduction. Citizenship Stud 7(4):1

Part II

Conscientious Objection and Contemporary International Law

This Part, in one chapter, outlines relevant contemporary international law with a bearing on conscientious objection. It identifies the supra-national framework of conventions, protocols etc relating to this right. It considers relevant supra-national caselaw establishing legal benchmarks justifying the context and conditions which determine when the right may be exercised.

Chapter 3

The International Legal Framework for Conscientious Objection and Themes for Comparative Jurisdictional Analysis

Abstract This chapter begins with an overview of the relevant international legal framework for conscientious objection. It identifies the main provisions relating to this principle, as they originated in the Universal Declaration of Human Rights (UDHR) and were thereafter developed in instruments such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), before turning to outline the structure of international judicial and regulatory bodies. It then focuses on the principle of conscientious objection, its legal definition and interpretation. It explains how this principle has grown to transcend its initial confinement to a military context and considers how it now relates to the principle of State neutrality. The chapter then embarks on its examination of conscientious objection in a human rights context, beginning with the fundamental rights: the freedoms of expression, association/assembly and religion. This sets the scene for an exploration of contemporary caselaw, illuminating varying aspects of the relationship between conscientious objection and the provisions of equality and non-discrimination legislation, as experienced in public and private service provision settings. This chapter is of critical importance as it identifies and justifies a taxonomy of issues and themes arising from the caselaw study that will structure the jurisdiction specific exploration of Part III, and provide a basis for the subsequent cross-jurisdictional comparative analysis.

3.1

Introduction

This chapter begins with an overview of the relevant internationsl legal framework for conscientious objection. It identifies the main provisions relating to this principle, as they originated in the Universal Declaration of Human Rights (UDHR) and were thereafter developed in instruments such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), before turning to outline the structure of international judicial and regulatory bodies. It then focuses on the principle of conscientious objection, its legal definition and interpretation. It explains how this principle has grown to transcend its © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_3

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3 The International Legal Framework for Conscientious Objection and Themes. . .

initial confinement to a military context and considers how it now relates to the principle of State neutrality. The chapter then embarks on its examination of conscientious objection in a human rights context, beginning with the fundamental rights: the freedoms of expression, association/assembly and religion. This sets the scene for an exploration of contemporary caselaw, illuminating varying aspects of the relationship between conscientious objection and the provisions of equality and non-discrimination legislation, as experienced in public and private service provision settings. This chapter is of critical importance as it identifies and justifies a taxonomy of issues and themes arising from the caselaw study that will structure the jurisdiction specific exploration of Part III, and provide a basis for the subsequent cross-jurisdictional comparative analysis.

3.2

Framework of International Instruments

A growing body of international treaties, conventions and protocols provide a supranational framework of provisions that variously impact upon the national interpretation and role of conscientious objection. Intended to supplement rather than supplant domestic legislation, they may also provide a backstop—an authorative body of standards—to which appeal can be made when domestic legal processes fail. Together with a mass of related jurisprudence, and despite much being neither directly applicable to nor enforceable in some nations, this framework has for some decades provided a common point of reference for judiciary and government in all Part II jurisdictions. For present purposes, it is worthy of note that none of these instruments—including the Framework Directive—contain a definition of what may constitute a ‘religion’, ‘belief’ or ‘conscience’ thus leaving open to interpretation the potential application of ‘conscientious objection’.

3.2.1

The Universal Declaration of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) 1948, as explained in the previous chapter, laid the foundation for every subsequent international human rights instrument and was thereby the first such instrument to identify the rights that became of central importance to an evolving conscientious objection jurisprudence. The ensuing decades have seen its provisions incorporated into the legal systems of 165 countries, including each of the six nations studied in Part II. Although without a designated enforcement mechanism, it is now accepted that the UDHR imposes an obligation upon the governments of all signatory States to ensure respect for the full body of rights.

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Article 1 This states that all human beings ‘. . .are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’. Article 18 This proclaims that: ‘everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’; subsequently replicated in Article 18 of the International Covenant on Civil and Political Rights, and Article 9 of the European Convention on Human Rights. Article 29 This declares the constraint that: ‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’.

3.2.2

The European Convention on Human Rights (ECHR)

Established in 1950, under the auspices of the Council of Europe, with effect from 1953, the ECHR has been described by the European Court of Human Rights (ECtHR) as a “constitutional instrument of European public order” in the field of human rights1 and its rulings have grown to form a considerable body of ever evolving principles. As the court noted in Tyrer v. the United Kingdom,2 the Convention “is a living instrument which. . .must be interpreted in the light of present-day conditions”.3 Article 2 This Article provides for the right to life which the ECtHR regards as “one of the most fundamental provisions in the Convention”.4 Article 9(1) Under Article 9(1) of the Convention:

1 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, Application No. 45036/98, (2005). 2 Application No. 5856/72, (1978). Wording derived from Article 31 of the Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331. 3 This is facilitated by the fact that the ECtHR is not bound to follow precedents, though it normally does (Rule 51 para. 1 of the Rules of Court). 4 McCann and Others v. the U.K., Application No. 18984/91, (1995).

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3 The International Legal Framework for Conscientious Objection and Themes. . . Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Article 9(2) replicates Article 18 of the UDHR and together with the conditional Article 14 constitute the key provisions relating to discrimination.5 With application throughout Europe they are therefore directly binding upon the UK and Ireland.6 Article 10 This provision reinforces the right to freedom of expression as established by Article 19 of the UDHR. It states that: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

A qualified right, it is conditioned by Article 10(2): The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary.

The ECtHR has determined that whether the restriction on freedom of expression is necessary “requires the existence of a pressing social need, and that the restrictions should be no more than is proportionate”. Protocol 1 Article 2 of Protocol 1 declares that ‘in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure that such education and teaching is in conformity with their own religious and philosophical convictions’. Article 14 This Article prohibits discrimination based on, among other things, religion and opinions. It is often relied upon in conjunction with Article 9.7

5

Specifically: Article 9(1); Article 14: and Article 2 of Protocol 1. Though not enforceable: see, for example, Hirst -v- The United Kingdom (No. 2), Application No. 74025/01, (2004), the case of Ms C in A, B and C v. Ireland, Application No. 26499/02, (2006), and Northern Ireland Human Rights Commission, Re Judicial Review [2015] NIQB 96. 7 See, İzzettin Doğan and Others v. Turkey, Application No. 62649/10, (2016). 6

3.2 Framework of International Instruments

3.2.3

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The International Covenant on Civil and Political Rights (ICCPR)

The ICCPR, which came into effect in 1976, has become particularly important because of its wide international application, accompanying monitoring process and the decisions taken by the UN HR Committee, on issues arising under its provisions. Article 2 This Article sets out the principle of non-discrimination. Article 8(2) This declares that: “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice”. Article 18 Article 18(1) explicitly requires State respect for those who express their commitment to religion, belief or moral values by refusing to undertake certain duties and has been interpreted as a mandate for conscientious objection.8 Article 18(3) provides that: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. Article 26 This Article, unlike the non-discrimination guarantee in Article 14 of the ECHR which is merely an accessory right, has been interpreted by the UN HR Committee as a general, free-standing, equality and non-discrimination guarantee which prohibits discrimination in law or in fact in any field regulated and protected by public authorities.9

3.2.4

The International Covenant on Economic, Social and Cultural Rights (ICESCR)

Adopted by the UN General Assembly in 1966, the Covenant took effect from 1976.

8

J.P. v. Canada, Communication No. 446/1991, CCPR/C/43/D/446/1991, (1991). Broeks v. The Netherlands (172/1984) Views, CCPR/C/29/D/172/1984, at para 12.1; HRC General Comment No 18: Non-discrimination (1989), HRI/GEN/1/Rev.1 at 26 (1994), at para 12; and Joseph and Castan (2013), pp. 759–831.

9

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3.2.5

3 The International Legal Framework for Conscientious Objection and Themes. . .

The UN Convention on the Rights of the Child (UN CRC)

Unanimously adopted by the United Nations General Assembly in 1989. Article 14 This declares the freedom of religion. Article 24 This declares the right of the child to the enjoyment of the highest attainable standard of health and, within that context, imposes on States parties an obligation to pursue full implementation of that right, including the taking of appropriate measures to combat disease.

3.2.6

The Charter of Fundamental Rights of the European Union

Article 10 protects freedom of thought, conscience and religion in the same way as the ECHR and it also lays down parents’ right to “ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected”. It permits the slaughter of animals without pre-stunning, in accordance with the beliefs of Halaal consumers, contrary to the general prohibition on such slaughter in Directive 93/104/EC.

3.2.7

The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine of 1997 (the Oviedo Convention)

Article 2 declares a principle of respect for the physical and moral integrity of the person, arising from the precedence of a human being over the sole interest of society or science. Article 5 states that such respect is also to be found in the necessity for the free and informed consent of a person before any intervention in the health field.

3.2.8

The EU Charter of Fundamental Rights

Promulgated in 2000, the Charter is important because it addresses a broad range of rights and because of its particular focus on equality. Article 20 provides that

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‘Everyone is equal before the law’, while Article 21(1) reads: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’. In the present context it has a particular relevance because while Article 10(2) states that ‘The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right’, it conspicuously avoids limiting the right to military service.

3.2.9

The United Nations Declaration on the Rights of Indigenous Peoples

Concluded in 2007, for four of the six Part II jurisdictions—Canada, Australia, New Zealand and the US (the CANZUS nations)—UNDRIP10 is singularly important. Article 12 This affirms the right of Indigenous peoples to their spiritual and religious traditions, customs and ceremonies, as well as to access and protect sacred sites, ceremonial objects and the remains of their ancestors. Article 34 This adds that “indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.” Although the CANZUS nations did ultimately endorse the Declaration, they did so subject to the same objections raised when they voted against it.11 UNDRIP has been said to codify “Indigenous historical grievances, contemporary challenges and socio-economic, political and cultural aspirations”.12

10

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly on Thursday, 13 September 2007, by a majority of 144 States. There were 4 votes against: Australia, Canada, New Zealand and the United States. 11 See, Gover (2015), pp. 345–373. 12 See, Coates, K. and Mitchell, T. (eds) ‘From Aspiration to Inspiration: UNDRIP Finding Deep Traction in Indigenous Communities’, 2013, at: https://www.cigionline.org/articles/aspirationinspiration-undrip-finding-deep-traction-indigenous-communities.

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3.2.10 Convention Relating to the Status of Refugees Dating from 1951, this UN Convention together with its 1967 protocol defines who is a refugee. It is a mulilateral treaty, with some 150 signatory States, forms the bedrock of international law on refugees.

3.2.11 The American Convention on Human Rights This Convention, in effect since 1978 and which draws from and reinforces the Charter of the Organization of American States, the American Declaration of the Rights and Duties of Man, and the Universal Declaration of Human Rights, includes the prohibition of any oppression of persons resulting from their faith. Article 12 This declares the right to freedom of conscience and of religion and states that parents have the right to provide for the religious and moral education of their children in accord with their own convictions.

3.3

Framework of Courts and Regulatory Bodies

The output of international judicial and regulatory bodies, mainly that of the ECtHR, exercise a very real influence on national law as it relates to the principle of conscientious objection.

3.3.1

Courts, Commissions and Other Regulatory Bodies

The judgments handed down by the European courts over many decades, have grown to constitute not only an evolving body of jurisprudence for all 47 member States but they also serve as benchmarks for courts and regulatory bodies elsewhere when addressing similar issues.

3.3.1.1

The Council of Europe

The Council of Europe, the continent’s leading human rights organisation, works to promote, among other things, greater consistency in the domestic laws of its 47 member States, 28 of which are members of the European Union. The Council has a Commissioner for Human Rights—at the time of writing, Dunja Mijatović— elected by the Parliamentary Assembly.

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The latter body, which monitors the implementation of CEDAW, has examined the issue of protection for the conscientious objections of a professional working in public service provision13 and in 2010 it adopted a resolution reaffirming ‘the right to conscientious objection in lawful medical care’. It found this right to lie within Article 9(1) and to have application in relation to matters such as opposition to abortion services;14 refusal to sell contraceptives;15 opinions on the benefits of alternative medicine;16 and refusal to work on registering homosexual civil unions.17 It has urged that such objections by health professionals should “remain a personal decision rather than an institutionalized practice”.18

3.3.1.2

The European Court of Justice (ECJ)

Officially the Court of Justice of the European Union (CJEU), and normally referred to as the ECJ, this body was established in 1952 with a role of ensuring that EU law is interpreted and applied fully and consistently throughout the EU.

3.3.1.3

The European Court of Human Rights (ECtHR)

This court has played both an essential and a pioneering role at international and European levels by prompting States to make major legislative changes on many issues. It is bound by the governing principle stated in Article 1 of the ECHR that Contracting States must “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”. The ECtHR also considers matters arising under the Oviedo Convention. In making its determinations, the ECtHR is guided by principles such as ‘proportionality’, ‘necessary in a democratic society’ and ‘a margin of appreciation’. The first requires a fair balance to be struck between the demands of the general interests of the community and the requirements of the protection of the individual’s

13

See, the Parliamentary Assembly of the Council of Europe: Resolution No. 1763 of 7 October 2010 on ‘Right to conscientious objection in the context of legal medical care’. It provides that ‘no person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion’. Resolution No. 1928 of 24 April 2013 at para. 9.10; and Resolution No. 2036 of 29 January 2015, at para. 6.2.2. 14 Knudsen v. Norway, Application No. 11045/84 (1985). 15 Pichon and Sajous v. France, Application No. 49853/99 (2001). 16 Nyyssönen v. Finland, Application No. 30406/96 (1998). 17 Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). 18 UN Doc. CEDAW/C/HUN/CO/7–8, CEDAW Committee, “Concluding Observations: Hungary,” 2013, para. 31.

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fundamental rights.19 The ECtHR looks at the interference complained of in the light of the case as a whole to determine whether the alleged interference is “prescribed by law” and was: (i) for a legitimate aim which is important enough to justify interfering with a fundamental right, (ii) rationally connected to achieving that aim, (iii) no more than reasonably necessary to achieve it, and (iv) in the light of this, striking a fair balance between the rights of the individual and the interests of the community.20 The second imports a liberal measure of balance and tolerance.21 Frequently the ECtHR can be seen applying the test—is this form of State intervention necessary in a democratic society?22 The third permits States a degree of latitude in their interpretation of human rights obligations.23 Each State enjoys a margin of appreciation, meaning that the extent to which there are differences in otherwise similar situations may justify a corresponding difference in treatment.

3.3.1.4

The UN Human Rights Commission/Council

In 1989 the Commission issued ‘Resolution 1989/59’ which, for the first time, recognized “the right of everyone to have conscientious objections to military service as a legitimate exercise of the right to freedom of thought, conscience and religion as laid down in Article 18 of the Universal Declaration of Human Rights as well as Article 18 of the International Covenant on Civil and Political Rights”.24 Subsequently, it recognized that conscientious objection “derives from principles and reasons of conscience, including profound beliefs, arising from religious, moral, ethical, humanitarian or similar motives”.25 Replacing the United Nations Commission on Human Rights in 2006, the functions of the Council include its management of the Universal Periodic Review Process and its use of Special Procedures by which special rapporteurs, independent experts or working groups are appointed to undertake discrete projects. 19

See: Olson v. Sweden (No 1) (1988) 11 EHRR 299; Sporrong v. Sweden [1982] 5 EHRR 35 at para. 69; Tsirlis and Kouloumpas v. Greece (1997) 25 EHRR 198 at para. 116; Razgar v. Secretary of State for Home Department [2004] UKHL 27 at para. 20; and see, Kozac v. Poland [2010] ECHR 280, (2010) 51 EHRR 16. 20 See: Huang v. Secretary of State for the Home Department [2007] 2 AC 167, para. 19; R (Quila) v. Secretary of State for the Home Department [2012] 1 AC 621, para. 45; and Bank Mellat v. HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, 222, para. 20. 21 See, Refah Partisi v. Turkey (2003) 37 EHRR 1, [2003] ECHR 87. 22 See, Olson v. Sweden (No 1), op cit, where it is explained that to be justifiable such interference must be “relevant and sufficient; it must meet a pressing social need; and it must be proportionate to the need”. 23 See, for example, Lithgow v. United Kingdom (1986) 8 EHRR 329, Fredin v. Sweden (1991) 13 EHRR 784, Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 EHRR 471. 24 See, further, at: https://www.ohchr.org/Documents/Issues/RuleOfLaw/ConscientiousObjection/ E-CN_4-RES-1989-59.pdf. 25 Commission on Human Rights: Resolution 1998/77 adopted on the 22nd of April 1998, at para. 10.

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3.3.1.5

75

The UN Human Rights Committee (UN HR Committee)

The Committee, established by the ICCPR and consisting of 18 experts, is empowered under the First Optional Protocol, now ratified or acceded to by 116 States, to determine alleged violations of ICCPR provisions suffered by individual citizens. However, this is a non-judicial body and its findings are non-binding. Its rulings, ‘General Comments’ and ‘Views’ when concluding such determinations have acquired a quasi-judicial status, are often important and influential, and at times they diverge from principles established by other bodies such as the ECtHR. In General Comment No. 22 the Committee stated that ‘religion or belief’ includes minority and non-mainstream religions and theistic, non-theistic and atheistic beliefs:26 The committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.

It would seem to be thereby recognising that a conscientious objection could be grounded in morals drawn from any one of a range of social, philosophical and religious traditions and adds that an individual has the right not to “be compelled to reveal his thoughts or adherence to a religion or belief”.27 Most importantly, in the same Comment it noted that: The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from Article 18.

Also of importance for present purposes is the further statement in the same Comment that it considers that while the “neutral and objective” teaching of religion in public schools is permitted, public education which includes instruction in a particular religion or belief is not “unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians”.

3.3.1.6

Regional Human Rights Commissions

It has been customary for human rights issues to be regulated by a designated national or regional Human Rights Commission, with a right of appeal to the appropriate court. Currently, there are eight such regional bodies—including the European Committee of Social Rights, the Inter-American Commission on Human Rights and the African Commission on Human and Peoples Rights—in addition to

26

At para. 11. General Comment 22, Article 18 (Forty-eighth session, 1993). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994).

27

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their national counterparts. In 1991, under the auspices of the UN General Assembly, the ‘Paris Principles’ were agreed which set out a basic template of functions and objectives for every local Commission. As equality and non-discrimination legislation has grown it is now not uncommon for all domestic human rights, equality and discrimination issues to be statutorily assigned to and determined by the same local administrative body.

3.3.2

Monitoring and Review Procedures

There are a number of processes that provide for ongoing monitoring and reports but are without any adjudicative or enforcement functions.

3.3.2.1

The Universal Periodic Review Process

This reporting mechanism was established by the UN Human Rights Council in 2007. It requires each member State to provide a human rights progress report at four-yearly intervals. This is subject to a peer review by all other States and concludes with agreed ongoing goals to be monitored and assessed at the next review cycle. So far two cycles have been completed (2008-11 and 2012-16).

3.3.2.2

The US Country Reports on Human Rights Practices

In accordance with the Foreign Assistance Act of 1961 and the Trade Act of 1974, the U.S. Department of State submits annual reports to Congress on all countries receiving assistance and on all United Nations member States. These reports, cover internationally recognized individual, civil, political, and worker rights, as established by international instruments.

3.3.2.3

The Reporting Process of the UN Convention on the Rights of the Child

Under Article 44 of the Convention, the Committee on the Rights of the Child established and manages a periodic reporting mechanism whereby each States party submits a report on Convention implementation for review by the Committee, two years after ratification and at five yearly intervals thereafter. As this reporting cycle has matured so increasingly State parties in their reports are making links between children’s human rights and the broader context of civil and political rights, and socio-economic rights.

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The Principle of Conscientious Objection: Legal Definition and Interpretation

Freedom of religion and conscience is an established human right under various international instruments, including Article 18 of the ICCPR which specifically includes the right to conscientious objection. The tension between that right and the right to equality and non-discrimination—including on SOGI grounds—is increasingly giving rise to conflict.

3.4.1

Human Rights and Conscientious Objection

The relevance of Article 18 of the ICCPR was recognised in J.P. v. Canada28 and in cases such as Min-Kyu Jeong et al v. Republic of Korea.29 Elaborating upon Article 18 obligations, the United Nations Human Rights Committee in the above mentioned ‘General Comment 22’ noted that: The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.

Equally, the international human rights instruments recognise that this right is conditional. The UN HRC noted, in J.P. v. Canada, that while Article 18 “certainly protects the right to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures, the refusal to pay taxes on grounds of conscientious objection clearly falls outside” its scope.30 Both the UN HRC and the UN ICESCR have declared that States may impose restrictions upon its use in the context of ensuring the right of individuals to the highest attainable standard of health. Such a restriction will be justified if it: follows the law; is compatible with other human rights; has legitimate aims; and is strictly necessary to promote general welfare.31

28

Op cit. Communication Nos. 1642-1741/2007, CCPR/C/101/D/1642-1741/2007, (2011). See, also, YeoBum Yoon and Myung-Jin Choi v. Republic of Korea, CCPR/C/88/D/1321-1322/2004, (2007). 30 Op cit, at para 4.2. 31 See: UN Human Rights Committee, General Comment No. 22, The Right to Freedom of Thought, Conscience and Religion (Article 18) UN Doc. CCPR/C/21/Rev.1/Add.4 (1993); and UN Committee on International Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. No. E/C.12/2000/4 (2000). 29

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3 The International Legal Framework for Conscientious Objection and Themes. . .

Conscientious Objection in a Military Context

Conscientious objection as grounds for exemption from service in the armed forces has been established for centuries (see, further, Sect. 1.4.1.3) but its contemporary recognition by the courts is more recent32 and its interpretation as a human right can probably only be safely dated from 2011 and the decision of the ECtHR in Bayatyan.33 Prior to that the court had considered that the issue of whether persons had the right to refuse to serve in national armed forces was a matter of national security, subject to Article 4 of the ECHR, and as such was an issue that fell to be determined by individual States. In Bayatyan, for the first time, it instead took the view that the issue was governed by Article 9. The court explained that “opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 . . . Whether and to what extent an objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case”. Bringing conscientious objection within the ambit of Article 9(1) was important as, within that provision, freedom of conscience is recognized as an absolute right in contrast to the conditional rights of 9(2). This was crucial to the further development of the associated jurisprudence. Thereafter, under the combined protection of Articles 9 and 14, it was entitled to shelter behind the broad prohibition against discrimination on grounds that included “other opion”.34

3.4.1.2

Conscientious Objection in a Non-military Context

The next step in the contemporary interpretation of the conscientious objection principle, towards a broad application in a non-military context, came in 2013 with the ECtHR decision in Eweida and Others v. the United Kingdom.35 The court then took the view that an employee’s sincere objection to same sex relationships constituted a legitimate and sincere manifestation of his beliefs and in a marked change from previous rulings,36 it considered that this gave rise to an onus on an

32

In X v. Germany, Application No. 7705/76, (1977), a Jehovah’s Witness, recognised by the authorities as a conscientious objector, was nonetheless sentenced to imprisonment on refusal to comply with a substitute civilian service. The Commission upheld the sentence, expressly recognising that conscientious objectors might be required to perform civilian service in substitution for compulsory military service. In J.P. v. Canada, Communication No. 446/1991, the HRC recognised for the first time, albeit obiter dictum, that Article 18 of the ICCPR afforded protection to conscientious objectors. 33 Bayatyan v. Armenia, Application No. 23459/03, (2011). 34 İzzettin Doğan and Others v. Turkey, op cit, at paras. 160 and 165. 35 Application Nos. 48420/10 and 3 others, (2013). 36 See, for example, Pichon and Sajous v. France, Application No. 49853/99, (2001).

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employer to recognise those beliefs and make such adjustments in the workplace as might be reasonable and proportionate to accommodate them. This was quite different from its previous approach which placed the onus on employees to reconcile any disparity between their beliefs and their workplace, if necessary they could achieve this by resigning. The ECtHR reprised its position as follows:37 Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate’.

The court went on to find that “[t]he State therefore had a positive obligation under Article 9 to secure his [McFarlane] rights.”38 This decision moved the goalposts and opened up the possibility of conscientious objection having a broader role in civil proceedings but only within the parameters established by Article 9(2).

3.4.1.3

Contiguous Extension of Rights

The interpretation of human rights is not set in concrete. The ECtHR has taken judicial notice of ways in which the law is trending: extrapolating from an established definition and moving towards a new formulation; one discernible but not yet fully formed. For example, in Schalk and Kopf v. Austria39 when considering whether the established right to marry could be extended to accommodate same-sex couples, the ECtHR took note of “an emerging European consensus towards legal recognition of same-sex couples” but that a majority of States had not provided this legal recognition. Consequently the court was of the view that while it “must not rush to substitute its own judgment in place of that of national authorities” it could with confidence regard the matter as one of “evolving rights”. Reconciling this decision with the one taken at much the same time in A, B and C v. Ireland40 is instructive: the ECtHR is struggling to find a balanced approach to deal with the jurisprudential time lag between current domestic law and norms that conflict with that law but are only in the process of becoming internationally established (see, further, below). This approach—noting and taking into account the contiguous extension of a right into other areas—is crucial to our understanding of the current progression, and probable future direction, of the right to conscientiously object.

37

Ibid, at para. 83. Ibid, at para. 108. 39 Application No. 30141/04, (2010). 40 [2010] ECtHR (GC) (No. 25579/05) (16 December 2010). 38

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3 The International Legal Framework for Conscientious Objection and Themes. . .

Freedom of Belief/Conscience

For a matter of belief or conscience to qualify for Article 9 protection it is sufficient that it merely evinces a certain level of cogency, seriousness, cohesion and importance to the holder.41 The protection extends to ideas and to philosophical convictions of all kinds.42 Because of the respect and weighting now given to the subjective interpretation of matters of belief or conscience, this area is no longer tied to organised religion, if it ever was, and is not amenable to firm legal parameters.43

3.4.2.1

Sincerity of Belief and Matters of Conscience

As a general rule, the State is not justified in casting doubt on the sincerity of the beliefs which an individual claims to hold unless there is clear supporting evidence to that effect.44 In S.A.S. v. France,45 for example, the ECtHR dismissed the State’s claim that the applicant, who claimed to be a practising Muslim and wished to wear the full-face veil in public, had not shown that she was an adherent of Islam nor that she wished to wear the veil for religious reasons. It took the view that the fact that this was a minority practice among Muslim women was not relevant.46 It similarly dismissed State claims that prisoners were not true adherents to their professed religions: in one case the claim was grounded on the fact that the prisoner had acquired his religious status by means of a distance learning course and did not belong to the local religious group;47 in another the claim rested on the assertion that the prisoner was merely attempting to avail of the better meals provided for members of a particular religion.48 It is permissible, however, to make factual findings as to: whether an applicant’s religious claims are genuine and sincerely held;49 and as to whether there is a logical link between a professed matter of conscience and a particular action or inaction.50

41

See, Campbell and Cosans v. United Kingdom, (1982) Application No 7511/76, 4 EHRR 293, at para. 36. 42 See, Knudsen v. Norway, Application No. 11045/84, (1985). 43 İzzettin Doğan and Others v. Turkey, op cit, at para. 107. 44 Manoussakis v. Greece, (18748/91) (1996) 21 EHRR CD3. 45 Op cit. 46 Similarly in Yachnik v. Belarus, CCPR/C/111/D/1990/2010, Application No. 1990/2010, (2014), when the sincere belief of a member of the Russian Orthodox Church that the issue of identity cards, which reduced her identity to a number was an affront to God, was not supported by the synod of her Church but this did not invalidate her conscientious objection. 47 Kovaļkovs v. Latvia, Application No. 35021/05, (2012) at para. 57. 48 Vartic v. Romania (no. 2), Application No. 14150/08, (2013) at para. 46. 49 Skugar and Others v. Russia (dec.), Application No. 40010/04, (2009). 50 Blumberg v. Germany, Application No. 14618/03, (2008).

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3.4.2.2

81

The Right to Hold and to Manifest a Belief or Matter of Conscience

Article 9 of the ECHR draws a distinction between the right to uphold a belief/a matter of conscience, whether religious or not, and the freedom to manifest it. The former is absolute and unconditional, the State cannot interfere with it.51 The latter is subject to limitations which are ‘prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the ‘rights and freedoms of others’ (though it should be noted that whereas ‘conscience’ is mentioned in Article 9(1) it is absent from 9(2)). This caveat is also recognised by Article 18 of the ICCPR. In the above mentioned ‘General Comment 22’, the UN HRC notes that the State may interfere in the right to manifest in accordance with the Article 9(2) and adds that any restrictions ‘must be directly related and proportionate to the specific need on which they are predicated’. To qualify as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion, belief or matter of conscience. Proximity is important as was underlined in the seminal Eweida and Others v. the UK52 when the ECtHR stressed that “the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case”.53 However, it is not necessary to establish that the act is mandated by that belief.54 So, for example, the court accepted that a Muslim man’s wish to wear a skullcap, which was not a strict religious duty but which nevertheless had such strong traditional roots that it was considered by many people to constitute a religious duty, was protected by Article 9.55 Manifestations of belief/conscience, or those professed to be so, have been found not to be protected by Article 9 in a variety of different circumstances, including:56 using the language of one’s choice in education and in contacts with the authorities;57 refusing to vote in mandatory general or presidential elections;58 a demand to have christening and confirmation cancelled;59 refusal to marry in accordance with the law, instead demanding that the State recognise their relationship as a valid marriage;60 a wish to have ashes scattered on property in order to avoid being buried

51

Ivanova v. Bulgaria, Application No. 52435/99, (2007) at para. 79; Mockutė v. Lithuania, Application No. 66490/09, (2018) at para. 119. 52 Appliation Nos. 48420/10 and 3 others, (2013). 53 Op cit at para. 82. 54 Ibid, at para. 82 and S.A.S. v. France [GC], Application No. 43835/11, (2014) at para. 55. 55 Hamidović v. Bosnia and Herzegovina, Application No. 57792/15, (2017) at para. 30. 56 See, further, at: https://www.echr.coe.int/Documents/Guide_Art_9_ENG.pdf. 57 Habitants d’Alsemberg et de Beersel v. Belgium, Application No. 1474/62, (1963) and Inhabitants of Leeuw-St. Pierre v. Belgium, Application No. 2333/64, (1965). 58 X. v. Austria. 59 X. v. Iceland, Application No. 2525/65, (1967). 60 X. v. Germany, Application No. 6167/73, (1974).

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in a cemetery amidst Christian symbols;61 a wish to walk naked in public in belief that such behaviour was socially acceptable;62 a wish to be recognised as a “political prisoner” and refusal to work in prison, to wear prison uniform and to clean their cell;63 refusal to subscribe to a professional old-age insurance scheme;64 a wish to marry and have sexual relations with a girl under the legal age of sexual consent on the grounds that such a marriage was valid under Islamic law;65 a father’s wish to inflict corporal punishment on his child;66 a wish to commit assisted suicide;67 a wish to unfurl a banner bearing a political slogan in a railway station;68 a refusal to use car seatbelts;69 a refusal by pharmacists to sell contraceptives;70 and a wish on the part of parents to evade the obligation set out in domestic legislation to have their children vaccinated.71 These and many similar cases could as readily be interpreted as claims, although unsuccessful, to be excused normal civic responsibilities on the grounds of conscientious objection. This, perhaps, accounts for the assertion that Article 9 does not provide a right to conscientious objection: it only protects actions and gestures that are intimately connected with a creed or belief.72

3.4.3

State Neutrality

The State, in a democratic society, may need to place restrictions on the Article 9 freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected. However, in doing so, the State has a duty to remain neutral and impartial in order to ensure preservation of pluralism and the proper functioning of democracy.73 Where necessary, the State can take preventive action to protect the fundamental rights of others in furtherance of its obligation under 61

X. v. Germany, Application No. 8741/79, (1981). Gough v. the United Kingdom, Application No. 49327/11, (2014). 63 McFeeley and Others v. the United Kingdom, Application No. 8317/78, (1980) and X. v. the United Kingdom, Application No. 8416/79, (1980). 64 V. v. the Netherlands, Application No. 10678/83, (1984). 65 Khan v. the United Kingdom, Application No. 11579/85, (1986). 66 Abrahamsson v. Sweden, Application no. 12154/86, (1987). 67 Pretty v. the United Kingdom, Application No. 2346/02, ECHR 2002-III. 68 K. v. the Netherlands, Application No. 15928/89, (1992). 69 Viel v. France (dec.), Application No. 41781/98, (1999). 70 Pichon and Sajous v. France, (dec.), Application No. 49853/99, ECHR 2001-X. 71 Boffa and Others v. San Marino, Application No. 26536/95, (1998). 72 Application No. 0007705/76, (1977) 9 DR 196. See, further, at: http://www.preview2.1cor. enstar.net/1272/. 73 Metropolitan Church of Bessarabia and Others v. Moldova, Application No. 45701/99, ECHR 2001-XII at paras. 115–116, Hassan and Tchaouch v. Bulgaria, Application No. 30985/96, ECHR 2000-XI at para. 76 and Leyla Şahin v. Turkey, Application No. 44774/98, ECHR 2005-XI at para. 107. 62

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Article 1 of the ECHR to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”.74

3.4.3.1

Legitimacy of Belief

The principle of State neutrality towards religion prevents the State, court or other regulatory body from enquiring into the legitimacy of a belief or the way in which it may be expressed.75

3.4.3.2

Universal Legislation That Unfairly Burdens a Minority

Legislation enacted by the State, ostensibly universal and neutral, may in application impose an unfair burden on a person or collective. Any resulting constraints on their right to manifest beliefs or matters of conscience may give them a right of complaint under Article 9(1) but not necessarily any automatic right of non-compliance.76 In practice, this can be a difficult balancing act.77 The State can refute such a claim under Article 9(2) by demonstrating that the interference was justified in principle and proportionate:78 meaning that there was no other means of achieving the same end that would interfere less seriously with the fundamental right concerned; the burden being on the State to show that no such measures were available.79 So, for example, the ECtHR in Buscarini and Others v. San Marino80 found that a legal requirement on applicants to take an oath on the Gospels on pain of forfeiting their parliamentary seats imposed an undue constraint upon a person’s freedom to manifest their allegiance to any religion/belief or to none. Indeed, State authorities are not free to interfere in individuals’ freedom of conscience by asking them about their religious beliefs or forcing them to express those beliefs.81 In Karakuzey v. Germany82 the ECtHR upheld the conviction of a divorced Muslim man who had been sentenced to prison for refusing to pay maintenance for his under-age daughter on the ground that she had changed religion and therefore, in

74

Leela Förderkreis e.V. and Others v. Germany, Application No. 58911/00, (2008) at para. 99. Eweida and Others v. the United Kingdom, op cit at para. 81. 76 Fränklin-Beentjes and CEFLU-Luz da Floresta v. the Netherlands (dec.), Application No. 28167/ 07, (2014). 77 C. v. the United Kingdom, Application No. 10358/83, (1983) and Skugar and Others v. Russia (dec.), Application No. 40010/04, (2009). 78 Leyla Şahin v. Turkey, op cit at para. 110. 79 Biblical Centre of the Chuvash Republic v. Russia, Application No. 33203/08, (2014) at para. 58. 80 Op cit. 81 Alexandridis v. Greece, Application No. 19516/06, (2008) at para. 38 and Dimitras and Others v. Greece, at para. 78. 82 Application No. 26568/95, (1996). 75

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terms of that religion, was considered to be “non-existent”. It found that the obligation to pay maintenance for a child, custody of whom had been granted to the other parent, was generally applicable and had no direct implications per se for the sphere of religion or conscience. The same principle has been applied in many cases, including: the requirement that a practising Sikh remove his turban when passing the walk-through scanner before entering the airport departure lounge;83 similarly, the fining of a practising Sikh for breaching the legal obligation on motorcyclists to wear a crash helmet;84 and upholding the conviction of a man sentenced to prison for having had sexual intercourse with a girl under the age of sixteen despite his claim to be married to her under Islamic law.85 a complaint from a shopkeeper opposed to all forms of insurance who had been fined for driving his van without the compulsory civil-liability insurance. The Commission found that the interference complained of was “necessary in a democratic society” for the protection “of the rights of others”; that is to say for the protection of third party victims in any accidents.86

3.4.3.3

Victimisation

Under Article 34 of the ECHR, a complainant can claim the status of ‘victim’ if as a consequence of legislation introduced by government they are required either to modify their conduct or risk being prosecuted, or if they are members of a category of persons who risk being directly affected by the legislation in question. So, in S.A. S. v. France,87 the ECtHR acknowledged that a Muslim woman wishing to wear the full-face veil in public for religious reasons could claim to be a “victim” solely because such conduct was punishable by law, by means of a fine accompanied or replaced by a compulsory citizenship course. Where domestic authorities refuse to register a religious organisation, any individual member can claim to be a “victim” of a violation for the purposes of Article 34.88

83

Phull v. France, Application No. 35753/03, ECHR 2005-I. X. v. the United Kingdom, Application No. 7992/77, (1978). 85 Khan v. the United Kingdom, op cit. 86 X. v. The Netherlands, Application No. 2248/64, (1967). 87 Op cit. 88 Metodiev and Others v. Bulgaria, Application No. 58088/08, (2017) at para. 24. 84

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Fundamental Human Rights as Grounds for State Interference in Matters of Belief/Conscience/Religion in a Democratic Society

The freedom of thought, conscience and religion as enshrined in Article 9 of the ECHR is held by the ECtHR to represent one of the foundations of a “democratic society”.89 As has been said “the pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it”.90 As regards the modern common law jurisdictions surveyed in Part III, the ‘conscience’ of the autonomous individual is of central importance in the interplay of human rights. While certain of these—such as rights to life, access to justice and due process—remain essential, it is the role of conscientious objection in the context of those most fundamental human rights of freedoms of expression, of assembly/ association and of religion that for present purposes are of most interest. Further, as that role in relation to equality law currently generates the greatest volume of cases it is there that caselaw analysis reveals the complexities and tensions that now challenge ‘conscience’ in the many dimensions of everyday life.

3.5.1

The ECtHR and a ‘Democratic Society’

Central to the ECHR, and to shaping the role of conscientious objection, is the ECtHR construct ‘a democratic society’. The parameters for State intervention in private life are accordingly set by the ECtHR interpretation of what is ‘necessary in a democratic society’.

3.5.1.1

Characteristics of a Democratic Society

From time to time the ECtHR has alluded in its rulings to attributes it considers essential to a democratic society. These have included references to: freedom of expression as one of its “essential foundations”;91 extolling the virtues of “pluralism, tolerance and broadmindedness”;92 while warning that “democracy does not simply mean that the views of a majority must always prevail”;93 but that a balance must be 89

Nolan and K. v. Russia, Application No. 2512/04, (2009) at para. 73. Moscow Branch of the Salvation Army v. Russia [2006] ECHR 7288/01, [57]. See, for example, Lithgow v. United Kingdom (1986) 8 EHRR 329, Fredin v. Sweden (1991) 13 EHRR 784, Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 EHRR 471. 91 Handyside v. United Kingdom, Application No. 5493/72, (1976), at para. 49. 92 Ibid and Manoussakis v. Greece, Application No. 18748/91, (1996) at para. 44. 93 Young, James and Webster v. United Kingdom, Application Nos. 7601/76, 7806/77, (1981), at para. 63. 90

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achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.94 In such a society, religious pluralism is of fundamental importance, being “one of the foundations of a democratic society,” and consequently the State cannot dictate what a person believes or take coercive steps to make him change his beliefs.95

3.5.1.2

State Intervention in a Democratic Society

A distinguishing characteristic, perhaps the distinguishing characteristic, of a democratic society is that State intervention is in all respects limited.96 The legitimate aims justifying such intervention in an individual’s manifestation of his religion, beliefs or conscience are limited by Article 9(2) of the ECHR. This restricts intervention to matters of public safety, the protection of public order, health and morals, or the protection of the rights and freedoms of others. Any such interference, to be jusifiable, must link with one of these aims,97 must correspond to a “pressing social need”,98 be based upon “an acceptable assessment of the relevant facts”99 and be “proportionate to the legitimate aim pursued”.100 Importantly for conscientious objection, the interference must strike a fair balance between the rights of the individual and the interests of the community,101 an approach which imports a liberal measure of balance and tolerance.102 In assessing the congruity—of the nature of State interference with Article 9(2) restrictions—the ECtHR must take account of the historical background and special features of religion/belief for the State. When assessing whether or not interference is proportionate the ECtHR grants the State Party a margin of appreciation.103

94

Ibid. Nolan and K. v. Russia, Application No. 2512/04, (2009) at para. 73. 96 See, Olson v. Sweden (No 1), op cit, where it is explained that to be justifiable such interference must be “relevant and sufficient; it must meet a pressing social need; and it must be proportionate to the need”. 97 Svyato- Mykhaylivska Parafiya v. Ukraine, Application No. 77703/01 at paras. 132 and 137; S.A. S. v. France, op cit at para. 113. 98 Svyato- Mykhaylivska Parafiya v. Ukraine, ibid at para. 116. 99 Groppera Radio AG and ors v. Switzerland, Application No. 10890/84, A/173, (1990). 100 Tolstoy Miloslavsky v. United Kingdom, (1995) 20 EHRR 442. 101 See: Huang v. Secretary of State for the Home Department [2007] 2 AC 167, para. 19; R (Quila) v. Secretary of State for the Home Department [2012] 1 AC 621, para. 45; and Bank Mellat v. HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, 222, para. 20. 102 See, Refah Partisi v. Turkey (2003) 37 EHRR 1, [2003] ECHR 87. 103 Silver v. The United Kingdom, Application Nos. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, (1983). 95

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Freedom of Expression

The right to free speech has been upheld by the ECtHR in rulings which include Handyside v. The United Kingdom104 where the court declared that the right: is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

It has also issued rulings condemning government bans on public demonstrations by LGBT groups.105

3.5.2.1

Conscientious Objection

The judiciary have been circumspect in their consideration of when a mode of expression constitutes conscientious objection: the wearing of the headscarf by Muslim women in the classroom did not qualify;106 neither was it convinced that attending Friday prayers in the mosque was required by Islam107 nor that celebrating a religious holiday was a manifestation of belief when the applicant was unable to substantiate his belief. As regards the freedom of expression of individuals employed by religious organisations, as protected by Article 10 of the Convention, the Commission declared inadmissible an application from a doctor employed by a German Catholic hospital who had been dismissed for signing an open letter published in the press expressing an opinion on abortion contradicting the position of the Catholic Church. .. he had freely accepted a duty of loyalty towards the Church, which had limited his freedom of expression to a certain extent.108 That the freedom accommodates a refusal to express was established by the ECtHR in Alexandridis v. Greece when it ruled that the claimant’s right to freedom of expression had been violated by a requirement that in order to practice as a lawyer he had to disclose that he was not an Orthodox Christian. The right to manifest conscientious objection is arguably on a continuum that includes the right to proselytise and which can lead on to hate speech. For example, Vejdeland and Others v. Sweden109 concerned the conscientious objection of four 104

(5493/72) [1976] ECHR 5. Bączkowski and Others v. Poland, Application No. 1543/06, (2007); Alekseyev v. Russia, Application Nos. 4916/07, 25924/08 and 14599/09, (2010); and Genderdoc-M v. Moldova, Application No. 9106/06, (2012). 106 Dahlab v. Switzerland, Application No. 42393/98, (2001) and Şahin v. Turkey, Application No. 44774/98, (2005). 107 X v. UK, Application No. 7215/75, (1981). 108 Rommelfanger v. Germany, Application No. 12242/86, (1989). 109 Application No. 1813/07, (2012). 105

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Christians to same sex relationships who had chosen to manifest their beliefs by distributing leaflets within a secondary school condemning and vilifying homosexuality. The ECtHR ruled that Sweden did not violate the complainants right to freedom of expression: their criminal conviction for distributing leaflets containing offensive statements about homosexuals did not breach the ECHR; their actions constituted an abuse of the freedom of expression which verged on incitement to hatred.110

3.5.3

Freedom of Association/Assembly

As was noted in Islam-Ittihad Association & Ors v. Azerbaijan:111 citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned.

3.5.3.1

Conscientious Objection

On the face of it, this principle is very personal: conscientiousness would seem to be something experienced on a uniquely individual basis. However, a legal entity can claim to be a victim of a violation of its freedom of thought and religion even though it cannot exercise, as such, freedom of conscience.112 However, there is a collective and indeed a corporate dimension to conscientious objection: the right to autonomy, essential to the right of association and established under Article 9 of the ECHR, is recognised as extending to institutions founded on moral or religious beliefs. So, for example, in Rommelfanger v. Federal Republic of Germany113 it was recognised that a Catholic hospital was entitled to require its employees to refrain from publicly supporting abortion and could fire them for breaching that requirement.

110

Ibid, at paras. 54 and 55; citing Féret v. Belgium, Application No. 15615/07, (2009). Application No. 5548/05, (2014). 112 Kontakt-Information-Therapie and Hagen v. Austria, Application No. 11921/86, (1988). 113 Op cit. 111

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Freedom of Religion

Freedom of thought, conscience and religion as embedded in Articles 9 of the ECHR and 18 of the ICCPR entails, inter alia, the freedom to hold or not to hold religious beliefs.114 Its scope is such that it protects both religious and non-religious opinions and convictions as it is “ also a precious asset for atheists, agnostics, sceptics and the unconcerned”;115 though not all, as the term “practice” in Article 9(1) does not cover every act motivated or influenced by a religion or belief.116 If an act which is inspired, motivated or influenced by a religion or set of beliefs is to count as a “manifestation” of the latter within the meaning of Article 9, it must be intimately linked to the religion or beliefs in question. The ECtHR has ruled that the right to manifest religion includes the freedom to do so alone and in private, or in community with others, in public and within the circle of those whose faith one shared.117 However, in exercising that freedom an applicant “may need to take his specific situation into account.”118 Moreover, “no one can be compelled to reveal his thoughts or adherence to a religion or belief” by, for example, being required to swear a professional oath.119 Further, as the court warned in Sinan Işık v. Turkey, “State authorities are not entitled to intervene in the sphere of an individual’s freedom of conscience and to seek to discover his or her religious beliefs or oblige him or her to disclose such beliefs”.120

3.5.4.1

Conscientious Objection

As might be expected, litigation pursued in the context of religious freedom has generated an extensive range of issues, often involving allegations of discrimination. Claimants have sought Article 9 protection for their conscientious objection to State imposed constraints; increasingly so as more aspects of moral and philosophical conviction gain legal recognition as attentuated permutations of religious belief. In Campbell and Cosans v. United Kingdom,121 for example, the ECtHR held in favour of complainants who alleged that the system of corporal punishment in Scottish state

114

Kokkinakis v. Greece, 25 May 1993, Series A no. 260-A, at para. 31; Buscarini and Others v. San Marino [GC], Application No. 24645/94, ECHR 1999-I. 115 Ibid, at para. 128. 116 See: Pretty v. the United Kingdom, Application No. 2346/02, (2002) at para. 82; Cha’are Shalom Ve Tsedek v. France, GC, op cit at para. 73; Hassan and Tchaouch v. Bulgaria, GC, op cit at para. 60; Kalaç v. Turkey, op cit at para. 27; and Metropolitan Church of Bessarabia and others v. Moldova, op cit at para. 117. 117 See, for example, Perry v. Latvia, Application No. 30273/03, (2007). 118 Kalaç v. Turkey, op cit at para. 27. 119 Dimitrias and others v. Greece, Application No. 42837/06, plus 4 more (2010). 120 Application No. 21924/05, (2010) at para. 41. 121 [1982] 4 EHRR 293. See, also, Arrowsmith v. United Kingdom [1978] 3 EHRR 218.

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schools offended their philosophical convictions under Article 2 of Protocol 1 of the ECHR. Other rulings have extended Article 9 protection to: pacifism;122 opposition to military service;123 veganism;124 opposition to abortion;125 a doctor’s opinions on alternative medicine;126 heterosexual marriage and rejection of same sex unions.127 The extent of beliefs and matters of conscience that can be recognised as falling within the definition of Article 9 is evident from the assurance given by the ECtHR that it accommodates “atheists, agnostics, sceptics and the unconcerned”.128 However, clearly not all dissent is motivated by conscientious objection and the Human Rights Committee has warned that “the right to freedom of conscience does not as such imply the right to refuse all obligations imposed by law, nor does it provide immunity from criminal liability in respect of every such refusal”.129 So, for example, assisting suicide130 and marital sexual relations with an underage girl131 have both been denied Article 9 protection.

3.5.4.2

Religious Exemption

The exemptions embedded in equality legislation are well established—permitting religious organisations to restrict employment opportunities and often service and facility access—to those who share their religious beliefs. As the outworkings of such organisations reach ever further into public benefit provision, and indeed into commercial services, so the extent of their exemption from the laws that govern secular employment tends to generate ever more conscientious objections. Fernández Martínez v. Spain132 provides an illustrative example of the difficulties that arise for democratic societies. It concerned the conscientious objection of a Spanish Catholic priest to his expulsion from the priesthood because of his conduct: having married, had several children, and publicly advocating in favour of abortion and divorce being lawful. The ECtHR, in ruling that his expulsion had not been a disproportionate sanction, found that: Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance

122

Arrowsmith v. the United Kingdom, ibid at para. 69. Bayatyan v. Armenia, op cit. 124 W. v. the United Kingdom, Application No. 18187/91, (1993). 125 Knudsen v. Norway, Application No. 11045/84, (1985) and Van Schijndel and Others v. the Netherlands, Application No. 30936/96, (1997). 126 Nyyssönen v. Finland, Application No. 30406/96, (1998). 127 Eweida and Others v. the United Kingdom, op cit. 128 Kokkinakis v. Greece, op cit, at para. 31. 129 Paul Westerman v. Netherlands, Communication No. 682/1996, at para. 9.3. 130 Pretty v. United Kingdom, op cit. 131 Khan v. United Kingdom, op cit. 132 Application No. 56030/07, (2014). 123

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with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity.

Arguably, the court thereby recognised both the State’s democratic action in respecting and accommodating the autonomy of the religious community and also the non-democratic action of that community in the conduct of its affairs.

3.5.4.3

Proselytism

Conscientious objection may be seen as standing in an obverse relationship to proselytism but if pursued to extemis one activity may simply become the other. So, for example, in D.H. v. Czech Republic133 the wearing of an Islamic veil was in all probability seen by the wearer as a legitimate manifestation both of her religion and of her conscientious objection to the annonymity and religious neutrality in her workplace. The ECtHR, however, considered that the Islamic veil was a “powerful external symbol” capable of having a proselytizing effect, at least on very young children.

3.6

Conscientious Objection and Equality Caselaw

Equality and non-discrimination provisions in both domestic and international law cross-cut all sectors of service and goods provision—whether public or private— constraining conscientious objection as sufficient grounds for rejecting bona fide requests relating to such provision. In practice, raising a conscientious objection may trigger a claim of unlawful discrimination from either service provider or user.

3.6.1

Public Service Providers

Subject to Article 9(2) of the ECHR—requiring protection of public security, public order and the rights and freedoms of others—the public interest in equality of access to government goods and services will most usually overide any claim by a government official that conscientious objection negates their duty to make available the requested goods or service. Obstruction of public service provision on grounds of personal values is a frequently occuring cause of proceedings brought before the ECtHR, though less frequent is any accompanying forensic judicial examination of evidence required to prove the existence of relevant, deeply and consistently held moral or religious beliefs, justifying a professional from withholding the public benefit services he or she is employed to provide. Nonetheless, it is clear that 133

Application No. 42393/98, 2001-V ECtHR 449.

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conscientious objection—whether by service provider or user—must derive from a genuine religious or other comparable form of belief, or from a sincerely held matter of conscience. Any other motivation such as cost, efficiency, personal benefit, convenience or lifestyle considerations will nullify the legal basis of that principle.

3.6.2

Public Health

The ECtHR has declared that: “States are obliged to organize their health care system in such a way as to ensure that the effective exercise of the freedom of conscience of health professionals in the context of their duties does not prevent patients from accessing the services to which they are entitled under the applicable legislation”.134

3.6.2.1

Right to Life and Access to Medical Treatment

Several international instruments make provision for such rights, directly or indirectly, including the ECHR, Article 2, which requires the State to provide protection for the health of its citizens135 and the EU Charter of Fundamental Rights, Article 35, which declares that ‘everyone has the right of access to preventive health care and the right to benefit from medical treatment’.136 Against that context, issues arise in relation to how States have variously given effect to their protective duties during the Covid-19 pandemic: vaccines, quarantine, hospital treatment etc; and the extent to which they made room for the conscientious objections of those affected.

3.6.2.2

Refusal of Lifesaving Medical Treatment

Refusal of lifesaving medical treatment is a matter for the individual concerned. As the ECtHR held in Jehovah’s Witnesses v. the Russian Federation137 the essence of Article 8 of the ECHR lies in the protection provided for private life and human dignity and therefore it accommodates the right of individuals to refuse, for reasons of belief, the offer of lifesaving blood transfussions: the law must respect personal autnonomy; the risks incurred are a matter for private not public concern. The imposition of medical treatment without the consent of a mentally competent adult

134

R. R. v. Poland, Application No. 27617/08, (2011) at para. 206 and P. and S. v. Poland, Application No. 57375/08, (2012) at para. 106. 135 Ilhan v. Turkey, Application No. 22277/93, (2000). See, generally, at: https://www.echr.coe.int/ Documents/Research_report_health.pdf. 136 See, also, the UDHR, Article 25 and the ICESCR, Article 12. 137 Application No. 302/02, (2010).

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patient would interfere with his or her right to physical integrity and impinge on rights protected under Article 8. Being contingent upon an informed decision, this right is not available to children and medical intervention against the wishes of the child and/or of the parents will be justified as illustrated by the many cases involving the conscientious objection of Jehovah’s Witnesses to blood transfusions. In such circumstances it is not unknown for the treatment to be provided anyway as the doctor in charge may have a conscientious objection—legally if not professionally misplaced—to witholding treatment and allowing a patient to die.

3.6.2.3

Vaccines

In Salvetti v. Italy,138 the court determined that compulsory vaccination interferes with the right to the respect of private life guaranteed by Article 8(1) of the ECHR. Most recently, in Pavel VAVŘIČKA et autres c. République tchèque139 the ECtHR considered whether the obligation to vaccinate and the sanctions taken against the parents (notably denying access to school) were compliant with the freedom of conscience and the family freedoms guaranteed under Articles 8 and 9 of the ECHR and Article 2 of Protocol No.1. A decision remains pending. In the current global pandemic, the right of conscientious objectors to prevail against health and safety rules—thereby endangering the lives and wellbeing of others—is a matter of pressing concern and any emerging ECtHR caselaw clearly deserves the closest attention.

3.6.2.4

Medical Practitioners: Abortion Issues

This is a context in which international bodies such as the WHO, the UN HRC and CEDAW have been clear about the reproductive rights of women, including abortion, and their ancillary right not to have access to the full range of health care services obstructed. The UN HR Committee has declared that: “Article 18 may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience and religion”.140 Further, the Code of Ethics of FIGO (International Federation of Gynecology and Obstetrics) states:141 Assure that a physician's right to preserve his/her own moral or religious values does not result in the imposition of those personal values on women. Under such circumstances, they should be referred to another suitable health care provider. Conscientious objection to

138

Application No. 42197/98, (2002). Application No. 47621/13, (??). 140 Human Rights Committee, General Comment No. 28, Article 3: The equality of rights between men and women, UN Doc No. CCPR/C/21/Rev.1/Add.10 (2000) at para. 21. See, also, the CEDAW Committee, General Recommendation No. 24. 141 See, further, at: http://www.figo.org/Codeofethics. Google Scholar. 139

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3 The International Legal Framework for Conscientious Objection and Themes. . . procedures does not absolve physicians from taking immediate steps in an emergency to ensure that the necessary treatment is given without delay.

The ECtHR, while studiously avoiding recognising any right to an abortion142 (though Article 8’s right to private life does extend to respect for decisions to become a parent or not143) has struggled to balance “on the one hand, the need to ensure protection of the foetus and, on the other hand, the woman’s interests”.144 It has stressed that States have a responsibility to at least make information available explaining where and how to access such services.145 Provision of abortion and contraceptives have long generated issues which have had to make room for the conscientious objection of service providers. Most usually, this is catered for in terms of a ‘conscience clause’ incorporated in the relevant national legislation which restricts the exemption to medical practitioners and is provided for in the legislation of many European states.146 The ECtHR, in Pichon and Sajous v. France,147 pointed out that: “the main sphere protected by Article 9 is that of personal convictions and religious beliefs, in other words what are sometimes referred to as matters of individual conscience”. In 2010 it considered the interesting case of A, B and C v. Ireland148 (see, further, Sect. 5.8.1.1) in which it upheld the Irish court decision to deny access to abortion, in accordance with domestic law, as the “acute sensitivity of the moral and ethical issues” involved for that nation entitled it to a broad margin of appreciation. This decision clearly calls into question the discretionary latitude available when applying the ‘margin of appreciation’ doctrine, but it also draws attention to the problem presented by conscientious objection: the six dissenting ECtHR judges raised a crucial point—why should “moral views” have a power of veto over a prevailing legal consensus? The court noted that at that time there was an overwhelming consensus among contracting States in favour of providing legal access to abortion:149 Abortion is available on request (according to certain criteria including gestational limits) in some 30 Contracting States. An abortion justified on health grounds is available in some 40 Contracting States and justified on well-being grounds in some 35 such States.

The position taken up by the dissenting judicial minority mirrors that of conscientious objectors everywhere: in what circumstances and to what extent should an exemption be available to laws formulated by political consensus, designed for universal application, to meet the needs of the majority and which represent the

142

Maria do Céu Silva Monteiro Martins Ribeiro v. Portugal, Application No. 16471/02, (2004). Evans v. the United Kingdom, Application No. 6339/05, (2007). 144 Boso v. Italy, Application No. 50490/99, (2002). 145 A. B. & C. v. Ireland, Application No. 25579/05, (2010). 146 See, further, Heino et al. (2013), pp. 231–233. 147 Application No. 49853/99, (2001). 148 [2010] ECtHR (GC) (No. 25579/05) (16 December 2010). 149 Ibid at para 112. 143

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authority vested in government? It is a question that goes to the heart of conscientious objection. In R.R. v. Poland150 the ECtHR warned that Article 9 does not protect all acts motivated by religion or belief and issued a reminder that “States are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation”.151 As the CEDAW Committee stated some 20 years ago in its General Recommendation No. 24 that “if health service providers refuse to perform [reproductive-health services for women] based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers”.152 This approach was subsequently adopted by the European Committee of Social Rights when, in FAFCE v. Sweden,153 it rejected a claim that women could be denied access to legal abortion services by health professionals, on the grounds of the latter’s conscientious objection to the provision of such services. In keeping with its earlier ruling in IPPF v. Italy,154 the Committee stressed that the Charter “does not impose on States a positive obligation to provide a right to conscientious objection for health care workers”. Most recently, in Grimmark v. Sweden,155 the ECHR dismissed the application of a nurse, re-trained as a midwife, who was denied jobs in Sweden because of her refusal to perform abortions due to her Christian faith; such a refusal being legally prohibited in many European countries.156 Reiterating its warning in the above R.R. v. Poland, the ECtHR ruled that Swedish regulatory bodies were justified in refuting the applicant’s claim that Article 9 required employers’ to make reasonable accommodation for her sincerely held conscientious objection to participation in abortion procedures. It noted that the applicants were responsible for placing themselves in a position where their consciences and contractual duties would be in conflict as they had “voluntarily chosen to become a midwife and apply for vacant posts while knowing that this would mean assisting also in abortion cases”. It found that Swedish law, allowing employers to require employees to perform all tasks naturally falling within the scope of their employment—including requiring midwives to perform medical abortions—enabled Sweden to provide nationwide accessible abortion services and held that any infringement of the complainant’s freedom of religion did not violate Article 9.

150

Application No. 27617/04, (2011). Ibid, at para. 206. 152 See, further, U.N. Doc. A/54/38/Rev.1 (1999), at: http://tbinternet.ohchr.org/Treaties/CEDAW/ Shared%20Documents/1_Global/INT_CEDAW_GEC_4738_E.pdf. 153 Complaint No. 99/2013, (2015). 154 Complaint No. 87/2012, (2014). 155 Application No. 43726/17, (2020). 156 Including Sweden, Finland, Bulgaria, the Czech Republic and Iceland. 151

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Medical Practitioners: IVF Issues

The clash between traditional values and contemporary reproduction rights—a source of much conscientious objection—was evident in S. H. and Others v. Austria157 which concerned an Austrian ban on using sperm and ova donations for IVF treatment. In confirming the ban and overturning its 2010 decision, the ECtHR turned away from endorsing medical intervention using artificial means to assist pregnancy and instead restored the concepts of “natural procreation” and “natural family” as the basic foundations for the parenting model known to the law. It confirmed that the central rule—mater semper certa est (the mother is always certain)—in a decision that imposes constraints on the future use of IVF. “Natural procreation” was also a factor in Menneson v. France158 which concerned the parents of twins conceived following surrogacy treatment in the U.S. who, following their return to France, were unable to enter the children’s birth certificates into the French register of births as French law did not recognise that form of parent-child relationship. In Oliver Brüstle v. Greenpeace e.V159 the ECJ considered Oliver Brüstle’s objection to the refusal to grant him a patent to facilitate his research on neural cells produced from human embryonic stem cells. He believed that an embryo could not qualify as a form of “life” until 14 days after fertilisation and as his research involved embryonic stem cells taken from five or six day old embryos they should not be banned under the E.U. Directive 98/44/EC on the legal protection of biotechnological inventions. However, discounting his belief, the court found that “any human ovum must, as soon as fertilised, be regarded as a 'human embryo' if that fertilisation is such as to commence the process of development of a human being”. In a watershed judgment which seemingly gave precedence to religious precepts over scientific research, the court ruled that an invention is non-patentable if any of the necessary steps regarding its implementation result in the destruction of human embryos, or if the invention is used in the destruction of future embryos. The ECJ followed up in 2018 with a not dissimilar approach when it ruled that genetically edited plants (usually to improve crop yield and eliminate weaknesses) and animals must be made subject to the same regulatory regime as all other GM organisms.160

157

Application No. 57813/00, (2011). Application No. 65192/11, (2014). 159 C-34/10, (2011). See, also, See Blance, S., ‘Brüstle v. Greenpeace (C-34/10): The End for Patents Relating to Human Embryonic Stem Cells in Europe?’ IP Quarterly, at: http://www.avidityip.com/assets/pdf/Brustlemar12.pdf. 160 ECJ Case C-528/16, Confédération paysanne and Others v. Premier ministre and Ministre de l’Agriculture, de l’Agroalimentaire et de la Forêt. 158

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Medical Practitioners: Assisted Death Issues

There are few more difficult decisions taken by medical practitioners and next of kin than to discontinue providing lifegiving care and treatment for a patient: most often and simply in the form of a ‘Do Not Resusitate’ note on a hospital patient’s medical chart. In some countries assisted death—that is medically supervised and assisted drug induced death—as requested by a rational individual suffering from an incurable and distressing illness, is a legal right. Assisting in the exercise of this right is something to which many medical practitioners have a conscientious objection. The ECtHR in Pretty v. United Kingdom161 found that “Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination”.162 Yet, little more than a decade later, in Haas v. Switzerland,163 it took the view that a ‘right to die’ must be viewed in conjunction with that of personal dignity protected by Article 8 of the ECHR; a combination that allows for a right to die, if not to medical assistance in doing so, in closely defined circumstances.164 The governing principle, as the court then proclaimed, is that “an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to private life within the meaning of Article 8 of the Convention”.165 This decision would seem limited to recognising a personal right to suicide. However, subsequently in Lambert and Others v. France166 the ECtHR found that the judgment of the French Conseil d’État, declaring lawful a decision by the doctor in charge to discontinue artificial nutrition and hydration for a tetraplegic patient, resulting in his death, did not breach the right to life as guaranteed under Article 2 of the ECHR. This decision would seem to go a step further by condoning the medical assistance presumably given by the doctor who, on the facts available, cannot be said to have been motivated by a conscientious objection to any positive intervention. In 2019, the European Commission, European Parliament and European Council—agreed the terms of a directive that will require all EU member states to implement harmonised whistleblower protection laws within two years

161

Application No. 2346/02, (2002). Ibid, at paras 39–40. 163 (2014) 58 EHRR 7, at para. 51. 164 Haas v. Switzerland (2014) 58 EHRR 7. 165 Ibid at para 51. See, also, Koch v. Germany (2013) 56 EHRR 6, paras 46 and 51, and Gross v. Switzerland (2014) 58 EHRR 7, para. 60. 166 Application No. 46043/14, (2015). 162

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Public Education

The right to education was initially stated in Article 26 of the UDHR and subsequently in Articles 18(1) and (4) of the ICCPR, as reinforced by Articles 18 of the ICCPR, 13 of the ICESCR, together with Article 2 of Protocol 1. Article 13 of the ICESCR provides for a right of parental choice of school and a right to ensure that their child’s religious and moral education conforms to their own beliefs while the UN CRC is also relevant: Article 14 requires respect for the child’s right to freedom of thought, conscience and religion; Article 20 states that where alternative care arrangements are provided then due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background; while Article 30 establishes the right of children from such background or of indigenous origin to profess and practise their religion and maintain their culture. State schools, where education is compulsory, provide particularly sensitive forums for balancing these rights within a standardised national curriculum. Inevitably, in the multicultural settings of the Part III jurisdictions, the struggle to achieve a balance that appeases a wide constituency of interests will be accompanied by conscientious objections.

3.6.3.1

Parents, Schools and Conscientious Objection

According to Article 2 of Protocol 1 “in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”. In the light of which the ECtHR has required “the State to respect parents’ convictions, be they religious or philosophical, throughout the entire State education programme” and that this “duty is broad in its extent”.167 In Kjeldsen,168 a case which rested on a conscientious objection to mandatory sex education for teenagers in public schools, the ECtHR interpreted Article 2 of the First Protocol as not granting parents any right to object, on moral grounds, to school contents or practices, if these were developed in an “objective, neutral and pluralistic manner”. Striking an acceptable balance between State and parental rights in relation to the freedom of religion under the ECHR neither obliges States to allow religious education in public schools169 nor does it permit parents—who are primarily responsible for the education of their children—to require the State to provide a particular form of teaching or to organise lessons in a particular manner.170 It ruled that “the State is forbidden to pursue an aim of indoctrination that might be 167 Folgerø and others v. Norway, op cit at para. 84 and Kjeldsen and others v. Denmark, Application No. 5095/71, (1976) at para. 51. 168 Kjeldsen, ibid. 169 Savez crkava “Riječ života” and Others v. Croatia, Application No. 7798/08, (2010) at para. 57. 170 Osmanoğlu et Kocabaş v. Switzerland, Application No. 29086/12, (2017) at para. 95.

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considered as not respecting parents’ religious and philosophical convictions”. There have been a number of similar cases in which the ECtHR has ruled against parental conscientious objection to sexual education,171 matters of morals172 and ethics.173 Bernard and Others v. Luxembourg174 concerned parents who wanted their child to be exempted from participation in moral/social classes on grounds of philosophical conviction, but the legislative grounds for such exemption were restricted to religious belief. The Commission considered that in the absence of any allegation of religious or other indoctrination, the obligation on children taking moral and social education classes did not amount to interference in the exercise of freedom of thought or conscience. This is an interesting and unusual instance of a distinction being drawn between religious and other forms of belief. In Osmanoğlu175 the ECtHR considered the refusal of Muslim parents to send their daughters to compulsory mixed swimming lessons as part of their schooling. The court found that while the compulsion constituted an interference with the parents’ right to freedom of religion, nonetheless that interference had pursued a legitimate aim, namely to protect foreign students from any form of social exclusion. Where there is a straightforward conflict between the religious beliefs of parents and educational content then it is at least clear that Article 9 offers protection against religious indoctrination by the State.176 For example, in Angelini v. Sweden177 the ECtHR upheld the Swedish National School Board refusal to exempt the applicant, a State school pupil who claimed to be an atheist, from the teaching of religious knowledge which, she argued, required her to adopt a Christian mode of thought. Broadly, in such circumstances the ECtHR has upheld the parental right to conscientious object: humanist parents have the right to refuse permission for their children to participate in religious education lessons where a knowledge “incompatible with their own beliefs and beliefs” is taught;178 this right, which is based on their “natural duty towards their children”,179 aims also “to avoid a situation where pupils face a conflict between the religious education given by the school and the religious or philosophical beliefs of their parents.”180 The conflict may also surface, not in relation to educational content, but as regards parental objection to the use of 171

Jiménez Alonso et Jiménez Merino v. Spain, Application No. 51188/99, (2000); Kjeldsen, Busk, Madsen and Pedersen v. Denmark, op cit; and Dojan and others v. Germany, Application No. 319/08, (2011). 172 Sluijs v. Belgium, Application No. 17568/90, (1992). 173 Appel-Irrgang v. Germany, Application No. 45216/07, (2009). 174 Application No. 17187/90, (1993). 175 Op cit. 176 Angeleni v. Sweden, Application No. 10491/83, (1986) and C.J., J.J. and E.J. v. Poland, Application No. 23380/94, (1996). See, more recently, A.R. et L.R. v. Switzerland, Application No. 22338/15, (2017). 177 Op cit. 178 Folgerø and others v. Norway, Application No. 15472/02, (2007). 179 Hassan and Eylem Zengin v. Turkey, Application No. 1448/04, (2007) at para. 71. 180 Ibid.

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religious symbols or the exposure of their children to other political/ethical representations. So, in Lautsi v. Italy181 the conscientious objection of a secular parent to the ubiquitous presence of cruxifixes throughout the school her child attended was a significant issue not just for Italy but for all of Europe where Christianity formed and continued to play a fundamental role in national culture (some 21 signatory States of the ECHR joined with Italy to resist the secular challenge). In an important decision, the ECtHR ruled against the parent, giving precedence to the legitimacy of preserving cultural heritage. Three years later, in Mansur Yalçın & Ors v. Turkey,182 the ECtHR seemed to reprise its Lautsi approach, or to at least narrow its application, when it ruled that pupils must not be forced to participate in a particular form of worship or be exposed to religious indoctrination.183 In Folgerø,184 as in Zengin,185 the ECtHR indicated that recognizing the students’ parents a right to conscientious objection is a necessary “safety valve” when the actual neutrality of teaching in public schools is debatable.

3.6.3.2

Faith Schools

Article 2 of Protocol No. 1 provides explicit authority for establishing faith schools as a means of giving effect to the parental right to determine the religious education of their children, this is also protected by Articles 18 of the ICCPR and 14(3) of the Charter of Fundamental Rights of the European Union. For secularists and others the exclusiveness of faith schools can give rise to issues, including: investing State funding to establish premises and staffing; discrimination in pupil admissions and staff appointments; skewing curriculums in favour of religious belief; and the corresponding alignment of school ethos and values in regard to issues such as gay marriage, abortion etc. These have a proven capacity to generate conscientious objections.

3.6.3.3

Home Schooling

Where there is conflict between parental religious beliefs and educational content in a mandatory State schooling context, resulting in a parental decision to withdraw their child in favour of home schooling, then the ECtHR has been clear that any interference with parental rights under either Articles 8 or 9 “would be justified under Article 8(2) and Article 9(2) respectively as being provided for by law and necessary in a democratic society in view of the public interest in ensuring the

181

Application No. 30814/06, (2011). [2014] ECHR 938. 183 Ibid at para. 64. 184 Folgerø and Others v. Norway, Application No. 15472/02 (2007). 185 Hasan and Eylem Zengin v. Turkey, (2008) 46 EHRR 44, [2007] ECHR 787. 182

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children’s education”.186 The rationale for mandatory school attendance in some countries such as Germany is necessary, as was explained in Konrad, for “integrating minorities and avoiding the formation of religiously or ideologically motivated ‘parallel societies’”.187

3.6.3.4

Religious Dress, Prayers etc in Schools

Conscientious objection may take the form of an insistence on publicly wearing something indicative of private beliefs. This was the case in Hudoyberganova v. Uzbekistan188 when the HR Committee ruled that the decision of a university to exclude a student for her refusal to remove her hijab in class constituted a breach of Article 18 of the ICCPR and similarly in Singh v. France189 which concerned the expulsion of a Sikh boy from school for wearing a keski in accordance with his beliefs. The ECtHR, in Ahmet Arslan and others v. Turkey,190 found that the State had not established a satisfactory reason for imposing a prohibition on the wearing of religious clothing in public spaces, and failed to demonstrate that the restriction was necessary in a democratic society. However, when the religious garments or accessories are perceived as signifying more than discrete indications of personal conscientious objection to anonymity, then the judicial response is less sympathetic. In D.H. v. Czech Republic191 the ECtHR considered that the Islamic veil worn by a classroom assistant was a “powerful external symbol” capable of having a proselytizing effect, at least on very young children. In Leyla Sahin v. Turkey192 it upheld a university rule barring students who refused to remove their head coverings from attending classes or exams on the grounds that the domestic policy of secularism was the paramount consideration. Similarly, in Dogru v. France193 and Kervanci v. France194 it upheld the expulsion of two girls from schools where they had refused to remove their Islamic headscarves, ruling that such state action was not a violation of the private right to manifest one’s religion under Article 9.

186 Konrad and others v. Germany, Application No. 35504/03, (2006) at p. 8. Also, see Wunderlich v. Germany, Application No. 18925/15, (2019). 187 Konrad, ibid, at p. 8. 188 Communication No. 931/2000, CCPR/C/82/D/931/2000 (November 2004). 189 Communication No. 1852/2008, CCPR/C/106/D/1852/2008, (2012). 190 Application No. 41135/98, (2010). 191 Application No. 42393/98, 2001-V ECtHR 449. 192 Application No. 44774/98, (2005). 193 Application No. 27058/05, (2008). 194 Application No. 31645/04, (2010).

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More recently, the ECJ in Bougnaoui195 and in Samira Achbita & Anor v. G4S Secure Solutions NV196 ruled that the wearing of Islamic scarfs in a classroom setting was not justifiable. This approach would seem to underpin the French ‘burqua ban’ which the ECtHR upheld noting that: “the respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society”.197

3.6.4

Public Officials and Justice Issues

The ECtHR has upheld the outcome of disciplinary proceedings brought against an array of public officials for refusing—on grounds of conscientious objection—to fulfill their statutory duties. These include the Christian employee of a local authority who refused to register same sex civil unions198 and also lawyers.199 Conscientious objection may also present as a refusal to participate or to otherwise show allegiance at religious or culture specific ceremonies. Alternatively, it could take the opposite form of a resistance to the anonymity of an official dress code or uniform and an insistence on wearing something emblematic of personal beliefs200 as was the case in Eweida and others v. the United Kingdom.201 Francesco Sessa v. Italy202 concerned the conscientious objection of a Jewish lawyer to the scheduling of a case that clashed with the Jewish holidays of Yom Kippur and Sukkot. He had had given the Italian court ample notice of the problem and reorganising the lists to accommodate him would have caused minimal disruption to the administration of justice. As the ECtHR noted such a rescheduling seemed “a small price to be paid in order to ensure respect for freedom of religion in a multicultural society.”203 Nonetheless, it concluded that the refusal to reschedule was justified on grounds of the protection of the rights and freedoms of others—and in particular the public’s right to the proper administration of justice.

195 C - 188 /15 Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole Univers (2017). 196 [2016] EUECJ C-157/15 (31 May 2016). 197 Application No. 43835/11, (2014). 198 Eweida and Others v. the United Kingdom, op cit, at paras. 102–106. 199 Mignot v. France, op cit. 200 See, further, Howard (2017). 201 Op cit. 202 Application No. 28790/08, (2012). 203 Ibid at para. 13.

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Whistleblowers

These and conscientious objectors would seem to lie on the same spectrum of dissent from formal restrictions in the public interest and have long been suppoted by the OECD. Guja v. Moldova,204 the first case in which the ECtHR had to consider the public disclosure of internal information, concerned the dismissal of a civil servant from the Prosecutor General’s Office for divulging two documents which in his opinion disclosed interference by a high-ranking politician in pending criminal proceedings. The court found a breach of the applicant’s rights under Article 10 of the ECHR and concluded that the interference with his right to freedom of expression, in particular his freedom to impart information, had not been “necessary in a democratic society”. In reaching its conclusions the court identified the following as significant indicators which were applied in subsequent cases:205 the applicant had no authority apart from his superiors to turn to; there was a public interest in disclosure; the information disclosed was authentic; damage would be suffered by the authority concerned; the disclosure was made in good faith; and the penalty inflicted on the whistleblower was disproportionate. The importance attached to the role of whistleblower is evident in the guidelines issued by the Parliamentary Assembly206 which urges states to introduce legislation to protect such persons that act in good faith to disclose matters that are in the public interest. For present purposes an interesting aspect of this case is that the court of 17 judges reached their conclusion without the need to make any reference to conscientious objection. Their focus was on the failures of the relevant administrative system and its disproportionate response to the whistleblower’s actions, rather than on the latter’s conscience being at variance with prevailing legal constraints.

3.6.4.2

Prisoners Right to Challenge Conditions on Grounds of Conscientious Objection

The observance of dietary laws dictated by a religion or a philosophical system is a “practice” protected by Article 9(1) of the ECHR207 and one which entitles a prisoner to assert their conscientious objection to meals that fail to comply with such dietary requirements. In two cases the ECtHR has found a violation of Article 9 owing to a prison administration’s refusal to provide the applicants, prisoners of

204

Application No. 14277/04, (2008). Heinisch v. Germany, Application No. 28274/08, (2011) and Bucur and Toma v. Romania, Application No. 40238/02, (2013). 206 Parliamentary Assembly’s Resolution 1729 (2010) and Recommendation 1916 (2010) “Protection of “whistle-blowers” at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp? fileid¼17851&lang¼en. 207 Cha’are Shalom Ve Tsedek v. France, Application No. 27417/95, (2000) at paras. 73–74. 205

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Buddhist faith, with meat-free meals, as such an arrangement would not have been an excessive burden on the prisons in question.208

3.6.4.3

Asylum Seekers Right to Challenge Deportation on Grounds of Conscientious Objection and SOGI

Deportation, like imprisonment, is another aspect of coercive State intervention where the protests of the subject are going to be motivated more by a concern for personal life and limb than by something as esoteric, in the circumstances, as conscientious objection. Nonetheless, the principle would seem to have a bearing on the plight of many refugees if only as the inspiration for organisations to press for change in laws and practices that oppress refugees and offend the standards of a democratic society. The Refugees Convention and the Refugees Protocol provide the international framework of law and principle for addressing asylum seeker issues. Article 1A (2) of the Convention defines a refugee as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

The issue of the right of a foreign national to resist deportation to their country of origin, or to a third country, on the grounds that their SOGI status would expose them to harm has been the subject of UNHCR’s 2008 Guidance Note on ‘Refugee Claims Relating to Sexual Orientation and Gender Identity’ (updated in 2012209) which states that “a person cannot be expected or required by the State to change or conceal his or her [sexual] identity in order to avoid persecution. Nor can a duty be held to lie on deportee to be ‘discreet’ or take certain steps to avoid persecution, such as living a life of isolation, or refraining from having intimate relationships”.210 The guidelines recognise that people fleeing persecution for SOGI related reasons can qualify as refugees under Article 1A(2) of the 1951 Convention. The issue has also exercised the ECtHR. The court’s caselaw is based on the principles underpinning the Convention on the Status of Refugees and on ECHR rights: specifically, the fundamental importance of Articles 2 (right to life) and 3 (prohibition of torture); rather than Article

208

Jakóbski v. Poland, Application No. 18429/06, (2011) and Vartic v. Romania (no. 2), Application No. 14150/08, (2013). 209 Guidelines on International Protection No. 9: ‘Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’. See, further, at: www.unhcr.org/50913 6ca9.html. 210 See, further, at: www.unhcr.org/refworld/docid/48abd5660.html.

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9 and any protection it might offer an individual on the grounds of their SOGI status, religious beliefs or matters of conscience. That caselaw shows that protection is offered to those who have a substantiated claim that they will either suffer persecution for, inter alia, religious reasons or will be at real risk of death or serious ill-treatment, and possibly flagrant denial of a fair trial or arbitrary detention, because of their religious affiliation (as for any other reason). The principle that exposing an individual to the risk of serious and irreparable harm is unjustifiable has recently been extended by the ECtHR to include the guarantees of Articles 6 (right to a fair trial) and 5 (right to liberty and security). In exceptional circumstances protection may be sought under Article 9 if the applicant runs a real risk of a flagrant violation of this article in the receiving country.211

3.6.5

Citizenship and Conscientious Objection

Global population movement and transnationalism in business, finance, media platforms, migrant workers and in trade generally, are among the many impacts that have contributed to dilute the concept of ‘citizen’ in all Part III jurisdictions. This has unfolded in conjunction with demographic trends, economic recession, war in many countries and other factors that have combined to reduce State capacity to shoulder its traditional public benefit responsibilities. The result would seem to have been a fraying of the State/citizen relationship leaving both parties ill-prepared to forge the bond of mutual trust necessary to cope with the Covid-19 pandemic.

3.6.5.1

Service in the National Armed Forces

The UN HR Committee initially took the view that ‘[t]he Covenant does not provide for the right to conscientious objection; neither in Article 18 nor Article 19’.212 By the end of the 20th century, however, it had formally recognised that Article 18 did give such protection,213 explaining that while there was no explicit reference to conscientious objection in the Covenant: ‘such a right can be derived from Article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief’.214 That interpretation was reinforced in 2006 when it noted that Article 18(3) provided

211

Z. and T. v. the United Kingdom, Application No. 29392/95, (2001). LTK v. Finland, Human Rights Committee, Comm No 185/1984 UN Doc CCPR/C/OP/2, 61, [5.2]. 213 JP v. Canada, Communication No. 446/1991, (1991). 214 General Comment 22, Article 18, 48th Session, 1993, para 9.3. Cited with approval in Westerman v. The Netherlands, Communication No 682/1996’ (22 November 1995) UN Doc CCPR/C/43/D/682/1996 (1999). 212

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protection “against being forced to act against genuinely-held religious belief” and, under the same provision, that any state imposed restriction would be valid only if it was “prescribed by law and was necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others”.215 The ECtHR, more recently, has ruled that an individual’s conscience or his or her sincere and deeply-held religious or other convictions will provide grounds under Article 9 justifying opposition to military service.216 By applying Article 9 the court has limited conscientious objection to religious—or other convictions—comprising, in particular—but not exclusively—a firm, permanent and sincere objection to any involvement in war or the bearing of arms.217 Although most such cases concerned conscientious objectors who were Jehovah’s Witnesses, the court has also found violations of Article 9 in two cases of pacifists who mentioned no religious beliefs. In fact, to be recognised in law as a conscientious objector and be exempted from military service on that ground does not require a claimant to be either a religious adherent or a pacifist.218

3.6.5.2

Refusal to Pay Tax

Since Grandrath v. Germany219 the ECtHR has steadfastly refused to recognise any right to claim conscientious objection as a defence for refusing to pay taxes: in England, unless he could be sure it would not be allocated to financing the military sector220 and in France, there was a similar claim from a taxpayer who refused to pay a percentage of the tax used for funding abortions.221 It held that the general obligation to pay tax had, in itself, no specific impact in terms of the individual conscience, because the neutrality of the obligation was illustrated by the fact that individual taxpayers could not influence the allocation of taxes or decide such allocation once the taxes had been levied.

215

Yeo-Bum Yoon and Myung-Jin Choi vs. Republic of Korea, Communication No. 1321-1322/ 2004, at para. 8.3. See, also, Cenk Atasoy and Arda Sarkut v. Turkey, Communications Nos. 1853/ 2008 and 1854/2008. 216 Enver Aydemir v. Turkey, Application No. 26012/11, (2016) at para. 81. 217 Ibid. 218 Papavasilakis v. Greece, Application No. 66899/14, (2016). 219 (1966) 10 YBECHR 626. 220 C. v. the United Kingdom, Application No. 10358/83, (1983) and H. and B. v. the United Kingdom, Application No. 70073/10, (2013). 221 Bouessel du Bourg v. France, Application No. 20747/92, (1993).

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Pensions and Welfare Benefit Entitlements etc

This is an area in which there have been a number of sex and transgender discrimination cases222 which are of little direct relevance for present purposes: they essentially concern claimants’ whose objections are to a functional deficit in the law; objections motivated more by a straightforward need for legal redress than by their religion/belief or conscience. However, as in Dudgeon and other such cases, where there is a disconnect between the law prevailing in a particular cultural context and the new social norms becoming more generally established, they do raise the very relevant question as to how far a court can go in recognising the validity of objections—“in the area of evolving social rights where there is no established consensus”223—when the status quo is losing its legitimacy in the face of trending social developments.

3.6.6

Private Service Provision

The provisions of equality and non-discrimination legislation apply with direct force in this context. In most circumstances the conscientious objections of employers or service providers have not usually prevailed against the equality requirement. However, there are indications that greater flexibility is now being introduced.

3.6.6.1

Right of Retailers to Refuse Goods or Services on Grounds of Conscientious Objection

The refusal to provide goods or services on grounds of conscientious objection tends to revolve around SOGI or religion related issues and to involve a range of hospitality venues such as bed and breakfast accommodation, hotels, outdoor pursuit centres etc. As mentioned above, Eweida224 marked a turning point in the development of ECtHR caselaw. This was a ruling with important implications for many private and public sector service providers. The court then considered the disciplinary proceedings brought against Mr McFarlane, a private company employee, for refusing to provide psychosexual therapy services for same-sex couples on the grounds that he 222

See, for example: Grant v. South-West Trains Ltd, Case C-249/96 [1998] ECR I-621; K. B. v. NHS Pensions Agency, Case C-117/01, (2004); Sarah Margaret Richards v. Secretary of State for Work and Pensions, Case C-423/04, (2005); Courten v. UK, Application No. 4479/06, (2008); M.W. v. UK, Application No. 11313/02, (2009); Maruko v. Versorgungsanstalt der Deutschen Bühnen (C-267/06); and Römer v. Freie und Hansestadt Hamburg (C-147/08). 223 Courten v. UK, op cit. 224 Eweida and Others v. the United Kingdom, Appliation Nos. 48420/10 and 3 others, (2013) at paras. 107–110.

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conscientiously objected to homosexuality and could not do anything which ‘endorsed’ such activity. While it found that he was entitled to manifest his conscientious objection in the workplace and that his employer had interfered with that right, the court nonetheless upheld his dismissal. While his right to manifest religious beliefs by conscientiously objecting to provide therapist services to a gay couple was protected by Article 9 of the ECHR, it could not prevail against the employer’s right to require services to be provided in a manner that did not unlawfully discriminate against bona fide service users. As with Ms Ladele, it considered that in the circumstances the employer’s action had not been disproportionate: not to dismiss would have been to condone discrimination. Pichon and Sajous v. France225 concerned pharmacists who refused to sell contraceptives on grounds of conscientious objection. The ECtHR, however, denied them the protection of Article 9: “as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products”.

3.6.6.2

Right of Employers to Hire and Fire on Grounds of Conscientious Objection

The conscientious objection of an employer or employee can disrupt contractual employment arrangements. Most often this arises when an employee, whether in the public or private sector, requests that specific measures be adopted to accommodate them. For example, Stedman v. the United Kingdom226 concerned a Christian employee who was dismissed after his request to be exempted from working on Sundays was refused. The ECtHR dismissed the claim that his freedom of religion under Article 9 of the ECHR had been breached. Some responsibility rests on individuals to choose occupations which do not fundamentally conflict with their beliefs and to accept that, once employed, they cannot plead conscientious objection as grounds for refusal to undertake the duties of a post to which they were appointed. In Kottinenen v. Finland,227 for example, the ECtHR upheld an employer’s right to dismiss a Seventh Day Adventist who had refused to continue working after sunset on Fridays as required by his contract. It took the same approach towards an employee claimant in Kosteski v. the former Yugoslav Republic of Macedonia228 whose request to be exempted from work for particular religious holidays had similarly resulted in his being fired. The ECtHR held that he was not protected

225

Application No. 49853/99, (2001). Stedman v. United Kingdom, Application No. 29107/95, (1997). 227 (1996) 87 DR 68. 228 Application No. 55170/00, (2006). Also, see Francesco Sessa v. Italy, Application No. 28790/ 08, (2012). 226

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under Article 9 as such matters essentially fell to be determined on the basis of specific contractual obligations rather than on the grounds of religious belief.

3.7

Conclusion

This chapter trawled through international caselaw generated by international courts and other regulatory bodies, particularly that of the ECtHR, to identify leading principles and precedents. Doing so from a European perspective was necessary because most relevant international law originated there, resulting in several decades of caselaw and guiding principles, which have a direct bearing on two of the jurisdictions being considered and have undoubtedly influenced others. Drawing from the material in this and the preceding chapters makes it possible to assemble a thematic structure to focus the comparative jurisdictional analysis that follows in Part III. As a preliminary, the chapter outlined the international legal framework and examined the positioning of conscientious objection in relation to the freedoms of religion and those of expression and association before turning to focus on the caselaw illustrating the type of issues arising in settings such as education, the workplace and health care. This exercise revealed a number of interesting themes that will serve as touchstones or reference points for the Part III comparative analysis of jurisdictions. These include: the religious exemption;229 the right to right to manifest religious belief in public;230 parental rights in relation to children’s religious upbringing;231 right to medically assisted death;232 conscientious objection as grounds for a refusal of service provision;233 and the importance of the proportionality principle.234

229

Obst v. Germany, Application No. 425/03 (2010). Eweida and others v. the United Kingdom, Application Nos. 48420/10, 36516/10, 51671/10, 59842/10 - HEJUD [2013] ECHR 37. 231 Folgerø v. Norway, [2007] ECHR 546. 232 Haas v. Switzerland (2014) 58 EHRR 7. 233 FAFCE v. Sweden, Complaint No. 99/2013, (2015). 234 See: Olson v. Sweden (No 1) (1988) 11 EHRR 299. 230

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3 The International Legal Framework for Conscientious Objection and Themes. . .

References Gover G (2015) Settler–state political theory, ‘CANZUS’ and the UN declaration on the rights of indigenous peoples. Eur J Int Law 26(2):345–373 Heino A, Gissler M, Apter D, Fiala C (2013) Conscientious objection and induced abortion in Europe. Eur J Contracept Reprod Health Care 18(4):231–233 Howard E (2017) Religious clothing and symbols in employment. European Commission Joseph, Castan (2013) The international covenant on civil and political rights: cases, materials, and commentary, 3rd edn, pp 759–831

Part III

Jurisdictional Survey

This Part, the core of the book, comprising six chapters, examines the law governing conscientious objection as it relates to Mrs Eleanor Roosvelt’s “world of the individual person – the neighbourhood he lives in,; the school or college he attends; the factory, farm or office where he works . . .” in selected common law jurisdictions. It profiles the relevant legal framework in each jurisdiction and, drawing from the benchmarks identified in Chap. 3, it uses a toolkit of indices to establish where, when and how the courts in each jurisdiction have addressed the same or similar issues and notes any distinguishing jurisdictional characteristics. It identifies and contrasts such rules or principles as the judiciary have relied on, takes into account the relevance of cultural context, and thereby aims to explain any jurisdictional differences in the interpretation and application of the principle of conscientious objection. Essentially, this Part breaks down, identifies and classifies evidence of jurisdictional commonality and difference in a manner that lends itself to summative and comparative analysis in the final section.

Chapter 4

England and Wales

Abstract This chapter begins with a brief overview of the historical background, leading up to the current social context that shapes the role for conscientious objection issues in England and Wales. It considers the relevant principles, policy and law. Starting with the principle itself, its legal definition and interpretation, it then traces the related policy developments before setting out the current international and domestic legislative framework, noting the ratification of relevant international treaties, conventions or protocols and identifying the main judicial and regulatory bodies. The chapter then moves on to examine the functioning of conscientious objection in the context of relevant contemporary domestic law. This central section focuses on the intersect between conscientious objection and the fundamental human rights: freedom of expression, association/assembly and of religion. Finally, the chapter then systematically examines in turn a sequence of distinct themes relating to the interface between conscientious objection and equality and non-discrimination law (identified in the preceding chapter) as addressed in domestic caselaw; assessing any significant trends and governing principles.

4.1

Introduction

This chapter begins with a brief overview of the historical background, leading up to the current social context that shapes the role for conscientious objection issues in England and Wales. It considers the relevant principles, policy and law. Starting with the principle itself, its legal definition and interpretation, it then traces the related policy developments before setting out the current international and domestic legislative framework, noting the ratification of relevant international treaties, conventions or protocols and identifying the main judicial and regulatory bodies. The chapter then moves on to examine the functioning of conscientious objection in the context of relevant contemporary domestic law. This central section focuses on the intersect between conscientious objection and the fundamental human rights: freedom of expression, association/assembly and of religion. Finally, the chapter then systematically examines in turn a sequence of distinct themes relating to the interface between conscientious objection and equality and non-discrimination law (identified © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_4

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in the preceding chapter) as addressed in domestic caselaw; assessing any significant trends and governing principles. While this chapter is entitled ‘England and Wales’, to a very large extent the law outlined in the following pages may be taken as broadly representative of the three jurisdictions that comprise the UK. Where this is clearly not the case, as for example in relation to the law regarding LGBT rights in Northern Ireland, every effort is made to draw attention to that fact in the text.

4.2

Principles, Doctrines and Definitions

The execution of Thomas More, the Lord Chancellor, for refusing to take an oath recognising King Henry VIII as the head of the new Church of England, was possibly the first notable public example of conscientious objection and an illustration of its significance for personal integrity and society more generally.1 In legal terms, however, the principle probably dates back to the statutory exemption from oath-swearing granted in the Toleration Act of 1689.2 In due course similar statutory provisions extended to include exemption from compulsory military service, compulsory vaccination, and religious worship, instruction and/or education in schools. Conscientious objection is now protected by Article 9 of the ECHR as restated in ss.9 and 13 of the Human Rights Act 1998 (see, further, Sect. 3.2.2).

4.2.1

Religion, Belief and Matters of Conscience

Conscientious objection, arguably, is more readily accommodated in a society with a coherent religious culture with a uniformly recognised set of beliefs and associated values. All are then equally well placed to acknowledge the public/private stress points and weigh the significance of an individual’s decision to depart from the consensus by not making their contribution to a matter judged to be for the public benefit. The further removed a society is from having such a mono-cultural/religious identity the more complicated it then becomes to determine what should—or should not—qualify as a conscientious objection.

1

Thomas More, a devout Catholic, believed there was one Church (the Catholic Church) and one head of that Church (the Pope). For refusing to take the oath, More was imprisoned in the Tower of London in 1534 and beheaded on July 6, 1535 for high treason. 2 Properly known as ‘An Act for Exempting Their Majesties’ Protestant Subjects Dissenting from the Church of England from the Penalties of Certain Laws’ (author acknowledges advice from Paul Weller on this matter: note author, 26.10.21). Also, see, the Militia Ballot Act 1757 which allowed Quakers to be exempt from military service on the grounds of conscientious objection.

4.2 Principles, Doctrines and Definitions

4.2.1.1

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Traditional Religions

Paradoxically, of all the Part III jurisdictions, England and Wales would now seem to be the one most firmly set on a trajectory away from Christianity and traditional religion: accommodating evermore non-theistic, multitheistic and philosophical beliefs; but also becoming steadily more secular.3

4.2.1.2

Contemporary Belief Systems and Matters of Conscience

As has been said:4 Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising.

Judicial notice has accordingly been extended to recognition of a spectrum of ‘beliefs’—from the institutional religions of Judeo-Christianity etc to belief in the Jedi—that previous generations would have not found credible. In Willamson,5 Walker LJ asserted that: “the atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist”;6 “pacifism, vegetarianism and total abstinence from alcohol are uncontroversial examples of beliefs which would fall within Article 9 (of course pacifism or any comparable belief may be based on religious convictions, equally it may be based on ethical convictions which are not religious but humanist . . .)”.7 A non-belief in Christianity was also deemed to be a ‘similar philosophical belief’ for the purposes of Article 9.8 Three years later, Elias P in McClintock v. Department of Constitutional Affairs9 reiterated the established view of the ECtHR that “the test for determining whether views can properly be considered to fall into the category of a philosophical belief is whether they have sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society”.10 In Grainger v. Nicholson,11 the Employment Appeal Tribunal declared that the appellant’s strongly held philosophical belief about climate change and the alleged morality thereof were capable of constituting a philosophical belief within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 which made provision for such a belief to

3

See, further, Weller (2005). R (Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246, per Nicholls, LJ at para. 22. 5 Ibid. 6 Ibid, at para. 24. 7 Ibid, at para. 55. 8 Nicholson v. The Aspire Trust ET 2601009/04 (4865/142) March 2005. 9 [2008] IRLR 29. 10 Ibid, at para. 41. 11 [2009] UKEAT 0219 09 0311 (EAT). 4

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have a similar weight and significance as a religious belief in the context of human rights jurisprudence.12 The court found that “the claimant has settled views about climate change, and acts upon those views in the way in which he leads his life . . . his belief goes beyond mere opinion”.13 Within a year other tribunals had extended recognition to a range of belief systems each with their own cultural constituency, such as anti-fox hunting14 and a belief in the higher purpose of public service broadcasting.15 Most recently, in 2021, Battisby J sitting in the Employment Tribunal added ‘secular atheism’ to the ever-growing list of legally recognised philosophical beliefs.16

Legitimacy and Cogency Burton J, in Grainger v. Nicholson, suggested the following criteria for defining a ‘belief’:17 (i) The belief must be genuinely held. (ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available. (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. (iv) It must attain a certain level of cogency, seriousness, cohesion and importance. (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell and paragraph 23 of Williamson).

A lack of consistency will not prove fatal provided the beliefs (humanist) are sincerely held.18 The Equality Act 2010 endorsed this definition with its broad declaration that ‘beliefs’ include: any religion; any religious or philosophical belief; a lack of religion; and a lack of belief; to be determined in accordance with the believer’s sincerity.19 In Ghai,20 the Court of Appeal considered a request from Ghai, a Hindu, who had a conscientious objection to the constraints imposed by Council regulated burial arrangements. He requested that the Council make available some land outside the city precincts to allow the practice of open-air cremation as his religion required that

Paragraph 2(1) of the 2003 Regulations stated that “‘belief’ means any religious or philosophical belief”. 13 Grainger v. Nicholson, op cit, at para. 13. 14 See, Hashman v. Milton Park (Dorset) Ltd (t/a Orchard Park) ET/3105555/09. 15 See, Maistry v. BBC ET/1313142/10. 16 See, Sleath v. West Midlands Trains Ltd, ET/1310379/ 2020. 17 [2010] IRLR 4 (EAT) at para. 24. 18 Streatfield v. London Philharmonic Orchestra [2012] ET 2390772/2011. 19 See, Saggers v. British Railways Board [1977] IRLR 266 for an early ruling to that effect. See, further, Edge (2012). 20 Ghai, R (on the application of) v. Newcastle City Council & Ors [2010] EWCA Civ 59. 12

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cremation take place by traditional fire, in direct sunlight and away from man made structures. The court held that Mr Ghai's wishes as to how, after his death, his remains were to be cremated should be accommodated. Of particular significance is the fact that the Master of the Rolls, following the approach taken earlier by Baroness Hale in Williamson,21 emphasised the importance of the individual’s belief: “What we are concerned with in this case is, of course, what Mr Ghai’s belief involves when it comes to cremation, and it matters not for present purposes whether it is a universal, orthodox or unusual belief for a Hindu”.22 Moreover, “all beliefs are equally protected”,23 including a belief in “democratic socialism.”24 However, it was Eweida v. British Airways PLC25 that most clearly marked a turning point. This case concerned Ms Eweida, a committed Coptic Christian working for British Airways in a customer service area, who wanted to display a small crucifix around her neck contrary to BA policy that no jewellery was to be visible. The ECtHR26 ultimately ruled that British Airways had breached Ms Eweida’s human rights, in particular her right to freedom of thought, conscience and religion. Noting that religious freedom “is primarily a matter of individual thought and conscience” the court took the view that her desire to wear a crucifix openly was a sincere manifestation of her beliefs. This case may come to be seen as a milestone in opening up the development of the right to conscientious objection in a civilian context and justifying Trigg’s comment that “freedom of religion has been attenuated into freedom of ‘religion or belief’, and all too often it seems to become freedom of conscience”.27 The demonstrable sincerity of an individual’s belief is a crucial, if not sufficient, legal determinant.28 Due regard must be given to the judicial warning as to the inherent contradictions and dangers for legal objectivity in attaching undue weight to subjectively perceived ‘truths’.29 No matter how sincerely held, beliefs must amount to more than just mere opinions or deeply held feelings, they must involve a holding of spiritual or philosophical convictions which have an identifiable formal content. So, for example, in Playfoot30 the court found that an item of jewelry (a ‘purity ring’) was “representative of a moral stance and not a necessary symbol of Christian faith” 21

R (Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246. Ghai, R (on the application of) v. Newcastle City Council & Ors [2010] EWCA Civ 59, at para. 19. 23 GMB v. Henderson EAT 73/14/DM, 13th March 2015 at para. 62. 24 Ibid and also Olivier v. Department for Work and Pensions ET/1701407/2013. 25 [2010] EWCA Civ 80. 26 Eweida v. United Kingdom [2013] ECHR 37. 27 Trigg (2012), p. 134. Though Paul Weller comments: this may be viewed not as an “attenuation” of something, but as an “extension” of an historically theistic and largely Christian notion into a more religion (and belief) “inclusive” approach” (note to author: 29.10.21). 28 See, Christian Institute and Others v. Office of First Minister and Deputy First Minister Neutral Citation no. [2007] NIQB 66, per Wetherup J, at para. 48. 29 McFarlane v. Relate Avon Ltd [2010] EWCA Civ 880; [2010] IRLR 872, per Laws LJ at paras. 23–24. 30 Playfoot (a minor), R (on the application of) v. Millais School [2007] EWHC 1698. 22

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and similarly in Whaley31 it found a conviction that fox hunting being “carried on mainly for pleasure and relaxation by those who take part in it” was a recreational activity and did not amount to a belief as such. While in Conway32 it was found that Freemasonry was not a protected belief for the purposes of employment law because, although members were required to have a religious belief, it didn’t matter what that belief was so long as it included a belief in a supreme being and was compatible with the three “Grand Principles” of Freemasonry: brotherly love, relief of those in distress and truth. It did not itself offer a core belief or set of beliefs. On the other hand, in Blackburn33 two beekeepers won the right not to file their VAT returns online after claiming that to do so was contrary to their religious beliefs (it was their beliefs as Jehovah Witnesses, rather than the bee-keeping, that was determinative). The fifth criterion in Grainger requires a belief to be ‘worthy of respect in a democratic society’ but in Forstater34 the claimant’s gender-critical beliefs—which included the belief that sex is immutable and not to be conflated with gender identity—were held to violate that criterion. The Tribunal reached its decision because it considered the belief was absolutist in nature as illustrated by the fact that the claimant would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”. However, this was overturned on appeal with Choudhury J pointing out that the claimant’s gender-critical beliefs were widely shared and, though offensive to some, did not seek to destroy the rights of trans persons. Indeed, to the extent that she was taking a stand on matters of conscience, she could reasonably be considered to be making a conscientious objection. He took the view that a philosophical belief would only be excluded for failing to satisfy the Grainger criterion if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under Articles 9 and 10 of the ECHR by virtue of Article 17 thereof. He found that a belief as to the immutability of sex amounted to a philosophical belief and as such fell within the protection of Article 9(1) of the ECHR and therefore within s.10 of the Equality Act 2010. Nonetheless he stressed that, under the protective provisions of the 2010 Act, a “trans person would be safe in any workplace from the harassment inherent in being ‘misgendered’, that is to say being referred to by non-preferred pronouns or by a different gender to that in which they are living”. The more recent Employment Tribunal ruling in Sleath,35 determining that the claimant’s sincere commitment to ‘secular atheism’ was authentic, would seem to add to the general broadening—or lowering of the threshold—of what in law can be recognised as a ‘belief’ to be ranked in status alongside the traditional religions.

31

Whaley v. Lord Advocate [2007] UKHL 53. Conway v. Secretary of State for the Home Depar [2015] ET 2205162/2013. 33 Blackburn & Anor v. Revenue & Customs [2013] UKFTT 525 (TC). 34 Forstater v. CGD Europe & Ors (Religion or Belief Discrimination) [2021] UKEAT 0105 20 1006. 35 Sleath v. West Midland Trains Ltd, Op cit. 32

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Essentially, within a relatively short period, the legal definitions of ‘religion’ and ‘belief’ have greatly changed, bringing a corresponding change to the meaning of ‘conscientious objection’, thereby potentially justifying a much wider ambit of exemptions from civic responsibilities.

4.2.2

State Neutrality

Since at least Re Pinion (deceased),36 when it was held that “the court cannot discriminate between religions”, the need to treat equally all religions—and thus all beliefs and matters of conscience—has been well established. As Laws LJ put it in McFarlane v. Relate Avon Ltd:37 The common law and ECHR Article 9 offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts.

Notwithstanding the above, the fact remains that this is the only jurisdiction presently being considered that has an established church.38 Anglican canon law has been assimilated into national law which gives it, and Protestantism more broadly, a favoured legal status relative to all other religions. The enduring institutional presence, geographical spread and constitutional status of the Church of England, are testimony to the amount of support it continues to attract. In addition to State support for that religion in particular, there is evidence that the State leans towards a policy of broadly supporting religion and religious communities in general because of their assumed contribution to public benefit and as necessitated by their role as government contracted service providers.

4.2.2.1

Preferencing Christianity and the Christian Cultural Heritage

Given the constitutional arrangements requiring the State to extend preferential treatment to Protestantism, particularly to the Church of England, it is clear that Christianity maintains its centuries long position as the dominant religion. To a greater extent than other common law jurisdictions, however, secularism has steadily grown to become a larger and more settled feature of contemporary English society. As Munby J explained in X v. X,39 “although historically this country is part of the Christian west, and although it has an established church which is Christian, I sit as a secular judge serving a multi-cultural community”. 36

[1965] Ch 85. Also, see, Nelan v. Downes (1917) 23 CLR 546. [2010] IRLR 872; 29 BHRC 249 at para. 23. 38 Note that while true for England, Wales does not have an established church. 39 [2002] 1 FLR 508 at para. 12. 37

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The cultural heritage of this nation, formed as a result of five centuries of formal ties exclusively binding the Anglican Church to the State, continues to be of central importance. From the King James bible, to Handel, to Dickens and including social touchstones such as the custom of ‘godparents’, those ties have shaped the nature of English society (see, further, Sect. 2.2.1).

4.2.2.2

The Religious Exemption

Schedule 9 of the 2010 Act provides: at para 2, that a body representing an ‘organised religion’ is permitted to impose explicitly discriminatory restrictions on employment opportunities in relation to gender, marital status and sexual orientation;40 and, at para 3,41 that an employer with an ethos based on religion or belief is permitted to discriminate on the grounds of religion or belief42 if it is an occupational requirement for the particular post, is genuine and determining, and having regard to that ethos, and the nature or context of the work, the application of the requirement is a proportionate means of achieving a legitimate aim. Schedule 23, para 2 of the same Act, allows ‘organisations relating to a religion or belief’—but without a commercial sole or main purpose (unlike in the U.S. following the Hobby Lobby ruling43)—to discriminate on the grounds of religion or belief or sexual orientation in the way they operate. Their purpose must be to practice, advance or teach, or enable adherents to receive a benefit, or engage in an activity ‘within the framework of that religion or belief’, or to foster or maintain good relations between persons of different religions or belief. Such organisations may exercise religious discrimination when determining membership of the organisation, participation in its activities, use of its premises, or ‘the provision of goods, facilities or services in the course of activities undertaken by the organisation’. Such a restriction may be imposed either because of the purposes of the organisation, or to avoid causing offence on grounds of its religion or belief to adherents. However it must be exercised reasonably. Additionally, the sexual orientation provisions of the Equality Act 2010 allow a religious organisation to restrict provision of a service to persons of one sex or to separate services for persons of each sex—but only if this is necessary to comply with the doctrines of the religion, or be for the purpose of avoiding conflict with the strongly held religious convictions of a significant number of the religion’s followers.44 An organisation cannot lawfully discriminate in the provision of goods and

40

See, the Equality Act 2010, Sched. 9. Also, see the School Standards Framework Act 1998, s.60, which provides that foundation or voluntary schools with a religious character can give preference in employment, remuneration and promotion to teachers whose beliefs are in accordance with the tenets of that religion. 41 Giving effect to the Employment Equality Directive 2000/78/EC, Article 4 and 4(2). 42 See, further, Sandberg and Doe (2007). 43 Burwell v. Hobby Lobby, 573 US 134 S.Ct. 2751 (2014). 44 Equality Act 2010, Sched. 23, S. 2 (7) and s.2(9).

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services on the grounds of sexual orientation, where such provision is undertaken on behalf of a public body. The specificity of the above religious exemptions is matched by corresponding conscientious objections from secularists and others who deny that the grounds relied upon merit State preferential treatment.

4.3

Conscientious Objection and Exemption: An Evolving Policy

As the genesis of conscientious objection lies in religious belief this might be expected to give rise to complications in a context where Church and State are closely intertwined but where international law requires the latter to adopt a position of neutrality in relation to all religions.

4.3.1

Initial Exemptions

It was the Toleration Act 1689 that altered the law to provide the first statutory recognition for a legal right to affirm rather than swear, in very restricted circumstances,45 and in so doing also established the first legal recognition of conscientious objection in this jurisdiction. The Quakers and Moravians Acts of 1833 and 1838 permitted the right of affirmation on all occasions and in 1838 the right was extended to former Quakers and Moravians if they had “conscientious objections to the taking of an oath”.46 As with the earlier exemption, proof of membership of a designated religion was a pre-requisite. In 1869 and 1870 limited rights of affirmation were granted to unbelievers—atheists and agnostics. The Oaths Act 1888 established the modern basis of the entitlement to choose to affirm rather than swear an oath. Following a century of protests, the Quakers were granted exemption from compulsory military service on the basis of their pacifist beliefs in the Militia Ballot Act 1757. Since then the principle of freedom of conscience has been recognised by the law and conscientious objection to service in the national armed forces became a well established right available to all.47

45

An Act that the Solemne Affirmation & Declaration of the People called Quakers shall be accepted instead of an Oath in the usual Forme; 7 & 8 Will. 3 c. 34. 46 See, further, Braithwaite, C., ‘Legal Problems of Conscientious Objection to Various Compulsions Under British Law’ (1968) at: journals.sas.ac.uk. 47 Perkins and R. v. the United Kingdom, Application Nos. 43208/98 and 44875/98, (2003). and Beck, Copp and Bazeley v. the United Kingdom, Application Nos. 48535/99, 48536/ 99 and 48537/ 99, (2003).

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The Vaccination Act 1853, introducing mandatory vaccination against smallpox for all infants, was resisted by many parents some of whom were convicted multiple times “because they held the view that it was best for the children’s sake that they should not be vaccinated”.48 This led to legislation in 1898 Act exempting a parent from the mandatory requirement “if within four months of the birth of the child he satisfies two Justices . . . in petty sessions, that he conscientiously believes that vaccination would be prejudicial to the health of the child”. The exemption was continued by the Vaccination Act 1907 until compulsory vaccinations ceased with the introduction of the National Health Service Act 1948, by which time it had become obvious that universal vaccination was not achievable. At the turn of the century, media dissemination of misinformation on a spurious connection between MMR (a combined measles, mumps and rubella vaccine) and autism prompted an ‘anti-vax’ campaign49 and reinforced a general lack of faith in government control over standards of practice in health related matters.

4.3.1.1

Legal Recognition of ‘Conscience’

‘Conscience’ was probably first acknowledged in law as key principle by the courts of Equity.50 In due course it became recognised by the judiciary as an attribute of religious belief at a time when society was class structured and homogenous and religious values were pervasive and universally recognised.

4.3.1.2

An Aspect of Citizenship

Both the swearing of oaths and serving in the armed forces were civic duties the performance of which was required as a standard acknowledgement of fealty to God and Crown during a period when that twin allegiance was a given in English society. It was probably not until the anti-vaccination protests at the end of the nineteenth century that ‘conscience’ came to be recognised as not necessarily synonymous with religious belief, as the protests of many were motivated not by religious scruples but

48 See, Hansard, HC Deb 07 April 1879 vol 245 cc502-13, at: https://api.parliament.uk/historichansard/commons/1879/apr/07/bill-90-second-reading. 49 See, for example, Deer (2020). 50 The following maxims of equity stand as powerful reminders of the principled basis on which Chancery resolved disputes; they continue to inspire lawyers and influence judicial decisionmaking: “Equity follows the law. Equity will not suffer a wrong to be without a remedy. Equity acts in personam. He who seeks equity must do equity. He who comes into equity must come with clean hands. Delay defeats equity. Equality is equity. Equity looks to the intent rather than the form. Equity looks on that as done which ought to have been done. Equity imputes an intention to fulfil an obligation. Where the equities are equal, the first in time prevails. Where the equities are equal, the law prevails”.

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by doubts regarding the efficacy of the vaccines and wariness about submitting to government diktat. Thereafter, ‘conscientious objection’ was understood as an umbrella term for religious beliefs, other beliefs, a derivative from personal matters of conscience, or possibly an amalgam of any of the above which, if demonstrably convincing, would excuse an individual from duties generally required as contributions to the public good.

4.3.2

Abortion, Contraception and Adoption: A Context for Developing Policy

The Offences Against the Person Act 1861 criminalised abortion (though it had been prohibited in 1803) and continues to do so in respect of any abortions conducted outside the parameters drawn by the 1967 Act. Unsurprisingly, it was the legalisation of abortion in the Abortion Act 1967 that re-awakened a policy awareness of conscientious objection, its moral basis and legal parameters, which until then had been very largely limited to the above exemptions from taking religious oaths, smallpox vaccinations and from the obligation to serve in the armed forces. At around the same time, first introduced in 1960, contraception became widely and freely available on the NHS—though restricted to married women—by the mid-1960s. It also was the focus of much conscientious objection particularly from the Catholic Church and other religious organisations, but is credited with triggering a ‘sexual revolution’. Before contraceptives, housing and other welfare benefits became available to support single mothers, adoption was perceived as the solution to the social problem of unmarried mothers. For the latter, the ‘forced option’ of adoption—required to conform to the prevailing religious/cultural mores—resulted in the peak years for adoption being that period in the early 1960s before. A collective form of conscientious objection, felt if not articulated by the many tens of thousands of women and children involved who found themselves in such circumstances, impacted upon and helped shape subsequent social policy.

4.3.3

Same Sex Relationships: Evolving Contemporary Policy

“The voluntary union for life of one man and one woman to the exclusion of all others” has served as the definition of marriage in English law since at least Lord Penzance’s pronouncement some 150 years ago.51 This, together with centuries of Church/State solidarity regarding the need to recognise the existence of same sex relationships solely for the purposes of prosecuting the parties involved, testifies to 51

Hyde v. Hyde, 1 P. & D. 130, (1868), per Penzance LJ.

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the enduring depth of a social policy commitment to relationships that are exclusively heterosexual. As a consequence of the Wolfenden report,52 legislation was introduced to decriminalise consensual private sexual relations between those of the same sex in England in 1968, in Scotland in 1980 and in Northern Ireland 1982, but not until the ECtHR ruling in Dudgeon53 did domestic law begin the switch from prosecuting to protecting same sex relationships. That case, which altered policy in the UK and further afield, resulted from the objection—arguably ‘conscientious’—of the plaintiff to the fact that homosexual conduct remained criminal in Northern Ireland, under s.11 of the Criminal Law Amendment Act 1885, which represented the long and deeply entrenched prevailing religious culture. The landmark ruling found that sexual conduct, including homosexuality, was “an essentially private manifestation of the human personality” and State interference in it could only be justified by a pressing social need. It established an important precedent, the ripple effects of which contributed to changes in the corresponding laws of Ireland54 and Cyprus.55 Not until the end of the twentieth century, however, did a further ECtHR ruling, in Sutherland v. United Kingdom,56 alter the age threshold for homosexual activity. That ruling determined that the fixing of the minimum age for lawful homosexual activities at 18 rather than 16 violated the applicant’s right to respect for private life under Article 8 of the ECHR. As a consequence, the Sexual Offences (Amendment) Act 2000 was introduced to lower the age of such consent to 16. The Church/State commitment to exclusively heterosexual relationships ended in England and Wales with the Sexual Offences Act 1967. A similar consensus on the legal definition of ‘spouse’ terminated with the extension of the right to marry, under Article 12 of the 1998 Act, to same sex couples who contract civil partnerships. Further, the Marriage (Same Sex Couples) Act 2013, in giving effect to equality principles, ended the statutory monopoly of marriage by heterosexual couples and broadened yet further the legal interpretation of ‘family’. Having evolved to accommodate same sex relationships and marriage, the further adjustment of social policy to recognise marriages involving trans persons may in retrospect have seemed like a logical and unproblematic extension but in practice it owed much to the rulings of the ECtHR on initiatives taken by or involving conscientious objectors (see, further, Sect. 3.6). The Gender Recognition Act 2004 now enables a trans person to legally marry/ enter into a civil partnership in their acquired gender, provided this has been formally

52

Op cit. Dudgeon v. the United Kingdom, Application No. 7525/76, [1981] 4 EHRR 149, [1981] ECHR 5. 54 Norris v. Ireland, Application No. 10581/83, (1988). 55 Modinos v. Cyprus, 16 EHRR 485, (1993). 56 Application No. 25186/94, (1997). 53

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recognised by the Gender Recognition Panel and a gender recognition certificate issued; the latter is mandatory.57

4.3.4

Medical Advancement: Contiguous Policy Development

The further medical research pushes forward the greater the volume and complexity of emerging moral dilemmas. This natural correlation increases the span of subjects attracting conscientious objection. Tampering with ‘the stuff of life’, as much modern medical research is pejoratively termed, attracts bioethical analysis and a considerable volume of opposition from religious groups, particularly in relation to matters such as IVF, surrogacy, gene editing, inter-species transplants and the use of embryos for research. Cloning animals, genetically modified crops, engineering human embryos and growing human organs in pigs for transplant purposes are among the current bioethical challenges. In this jurisdiction, the fluoridation of drinking water was controversial, as were the subsequent government sponsored experiments with genetically modified food production, but it was the outbreak of bovine spongiform encephalopathy (BSE) in 1990—featuring the slaughter of some 4 million cattle and a consequent outbreak of Creutzfeldt-Jakob disease among humans—that provided a cautionary reminder of the consequences of ill considered interference with nature. Then the ‘swine flu epidemic’, from 2009–10, a pandemic involving little serious illness or death—mostly in children and young adults—added to national concerns regarding State capacity for preventative intervention in public health matters. Whether the law should permit the patenting of inventions that directly use hES (human embryonic stem) cells, or have used them in their development, was at issue in Eli Lilly,58 which upheld the validity of a patent for an aspect of gene sequencing. This rapidly expanding area of research is guaranteed to become a permanent and fertile field for conscientious objectors, as is that of medically assisted death. As was noted by Hoffmann LJ in Bland:59 “those who adhere to religious faiths which believe in the sanctity of all God’s creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life”. The media coverage given to a succession of poignant ‘right to die’ cases, accompanied by opposing sets of conscientious objectors, has yet to dissuade the judiciary from upholding the sentiments expressed by Hoffman LJ.

57

See, further, at: https://www.whatdotheyknow.com/request/transgender_people_getting_marri_2. Human Genome Sciences v. Eli Lilly [2011] UKSC 51. 59 See, Airedale NHS Trust v. Bland [1993]1 All ER 821, per Hoffmann LJ at 831. 58

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From Policy to Legislation

The Equality Act 2010, s.10, defines religion and belief as, “any religious or philosophical belief and a reference to belief includes a . . . lack of belief”. This broad definition has allowed a generous latitude of interpretation in relation to the range of beliefs held to ground conscientious objections. However, as illustrated by the Doogan case60 (see, further, below), while informal arrangements could usually be made to accommodate such objections they were often unprotected by rights in law. Consequently, a private Member’s bill entitled the Conscientious Objection (Medical Activities) Bill 2017–19 was introduced to the House of Lords by Baroness O’Loan.

4.4.1

Universal Legislative Constraints

The balance to be struck between civic duties of universal application intended to promote the good of the majority and exemptions from those duties for a minority, in recognition of the special status or circumstances of that minority—and the consequent transfer of the latter’s responsibility to others—is as difficult in this jurisdiction as in any other democratic society.

4.4.1.1

Laws That Unfairly Burden a Minority

Some exemptions are on the basis of protection for the beliefs of a small minority. Animal welfare, for example, requires animals to be stunned before slaughter and processing for human consumption. Objections from halaal consumers, whose beliefs necessitate no stunning, have resulted in exceptions to this requirement despite the provisions of Directive 93/104/EC on animal welfare.61 Other such exceptions on the same grounds include Sikhs but not Rastafarians being exempted from legislation requiring motorcyclists to wear crash helmets;62 and Jews but not Muslims being exempted from trading on ‘the Sabbath’.63 In R (Watkins-Singh) v. Aberdarle Girls’ High School64 the school ban on wearing jewellery was held to impose a particular constraint on Sikh pupils.

60

Doogan & Anor v. NHS Greater Glasgow & Clyde Health Board, [2013] ScotCS CSIH 36. Welfare of Animals (Slaughter or Killing) Regulations SI 1995/731, reg 22 and Sched 12. 62 Road Traffic Act 1988, s.16. 63 Sunday Trading Act 1994, s.8. 64 [2008] EWHC 1865, [2008] 3 FCR 203. 61

4.4 From Policy to Legislation

4.4.1.2

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Criminal Law Constraints

The issue as to whether the definition of “hate crimes” in various statutes (e.g. the Crime and Disorder Act 1998 and the Criminal Justice Act 2003) should be extended to include victims of SOGI related abuse has been the subject of review.

Covid-19 Pandemic Constraints The Public Health (Control of Disease) Act 1984 provided authority for the Secretary of State to issue the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 under which enforceable legal rules were promulgated, but the government issued many other directives which were mere guidance and did not have legal status. The significance of the difference, as Roskill LJ once explained, is that: “guidance is assistance in reaching a decision proffered to him who has to make that decision, but that guidance does not compel any particular decision.”65 Hickman has claimed, with some conviction, that instead of relying on statute law to provide an authorative framework, sanctioned by Parliament, to govern health matters during the pandemic, the government ‘used a ‘fusion of criminal law and public health advice . . . as a sui generis form of regulatory intervention that sits outside the regime of emergency governance established by Parliament’.66 He notes that government had alternative statutory powers available to it—under the Civil Contingencies Act 2004—which it chose not to avail of, possibly because this would have involved Parliament and compromised government’s freedom to pursue its strategy of governance by guidance.67 He goes on to point out that this mix of law and guidance created uncertainty among the general public—and often with the police—as to whether government instructions reflected rules of criminal law, with which people must comply, or simply recommended changes in behaviour based on public health advice, compliance with which was ultimately optional. So, for example, the instruction to obey the 2 metre distance requirement—repeatedly stressed by the Prime Minister—was not underpinned by law but was merely guidance and similarly, Hickman maintains, by relying on this elision of the distinction between law and guidance, “the UK lockdown was based on a gigantic bluff”68 (see, further, below at Sect. 4.8.1.4).

65

Laker Airways Ltd v. Department of Trade [1977] QB 643, 714. Hickman (2020), p. 3. See, further, at: https://mail.google.com/mail/u/0/#inbox. 67 See, further, A. Block, A. and Walker, C., ‘Why did government not use the Civil Contingencies Act?’ Law Gazette, 2 April 2020. 68 Hickman (2020), op cit at p. 17. 66

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4 England and Wales

Contemporary Government Initiatives

There is no equivalent in this jurisdiction to the upscaling of conscientious objection introduced in the U.S. by means of state ‘religious liberty laws’. The only step so far in that direction has been the protracted effort to gain sufficient parliamentary endorsement for the above mentioned Conscientious Objection (Medical Activities) Bill 2017–19. The purpose of this Bill is to extend conscientious objection protection to health care workers in abortion, euthanasia by withdrawal of life-sustaining treatment and in artificial reproduction under the Human Fertilisation and Embryology. Significantly, the Bill provides protection beyond actual ‘hands-on’ participation in activities to which a person conscientiously objects—as in abortion—to activities such as ‘preparation’, ‘support’, ‘supervision’, and ‘delegation’. It conspicuously omits the usual requirement that the objector must personally refer the service user to an alternative provider and is thereby making an important point: the objector is to be wholly exonerated from any implication of involvement in the matter objected to; that will become an administrative responsibility to be resolved by the employing agency.

4.5

Legislative Framework: International and Domestic

As a member of the EU, the legal framework of this State has been very much shaped by European legislative instruments and related rulings of the ECtHR and to a lesser extent those of the ECJ. It is difficult to predict if this will change significantly following Brexit.

4.5.1

International Legislation

For present purposes the most relevant international instruments binding on the UK are: the Universal Declaration of Human Rights (UDHR), ratified by the UK in 1951; the European Convention on Human Rights (ECHR), also ratified in 1951; the International Covenant on Civil and Political Rights (ICCPR) ratified in 1976 with certain reservations and declarations, including the non-adoption of Optional Protocol 1;69 the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified in 1976; the International Convention on the Elimination of Race Discrimination (ICERD) ratified in 1969; the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), ratified in 1986 with its Optional Protocol; and the Convention on the Rights of Persons with Disabilities (CRPD), ratified in 2009 (see, further, Sect. 3.2). 69

See, Moon (2003), pp. 283–307.

4.5 Legislative Framework: International and Domestic

4.5.2

129

Domestic Legislation

Conscientious objection, as derived from the governing principles outlined in the United Nations Declaration of Human Rights, subsequently enlarged in the European Convention, the International Covenant and the Charter of Fundamental Rights of the European Union, is currently given effect domestically mainly through the Human Rights Act 1998 and the Equality Act 2010.

4.5.2.1

The Marriage (Same Sex Couples) Act 2013

This legislation introduced same sex marriage in England and Wales.

4.5.2.2

The Equality Act 2010

This statute prohibits unfair treatment on any of nine ‘protected grounds’, which include religion or belief and gender reassignment, whether occurring: in the workplace, when providing goods, facilities and services, when exercising public functions, in the disposal and management of premises, or in education and by associations (such as private clubs); and whether it takes the form of direct or indirect discrimination or harassment or victimisation. Section 10(2) provides protection people against discrimination on the basis of religion or belief, the latter being defined as ‘any religious or philosophical belief’. Schedule 9, paragraph 2 gives effect to Article 4 of the above mentioned Framework Equality Directive 2000/78/EC including Article 2(b)(1) of which prohibits indirect discrimination on the basis of religion or belief. Part 2 of the Act makes provision for the ‘advancement of equality’ and s.149 requires public authorities, or private bodies carrying out public functions, when dealing with those the subject of a protected characteristic, to: eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act; advance equality of opportunity between persons who share a relevant characteristic and persons who do not share it; and foster good relations between such persons.

4.5.2.3

The Equality Act (Sexual Orientation) Regulations 2007

Regulation 6 creates exceptions for things done within a private home or when leased premises are being disposed of, and regulation 14 creates a further exception for organisations the sole or main purpose of which is to practise, advance or teach a religion or belief and which want to restrict the provision of goods, facilities or services in the course of their activities or to restrict the use or disposal of premises they own or control. The exception for religious or belief organisations is limited to situations where the provider of the service is itself a religious or belief organisation.

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Indeed the regulation explicitly states that the exception does not apply to organisations of which the sole or main purpose is commercial.70

4.5.2.4

The Racial and Religious Hatred Act 2006

This prohibits “incitement to religious hatred”71 but does not define religion or what constitutes a religious belief.

4.5.2.5

The Gender Recognition Act 2004

Effective from April 4th 2005, this statute allows trans persons, without undergoing surgery but with supportive medical affirmation, to change gender identity and obtain a gender recognition certificate.

4.5.2.6

The Employment Equality (Religion or Belief) Regulations 2003

These regulations made it unlawful for employers to discriminate on the grounds of religion or belief and enacted in UK law the religion or belief provisions of the Framework Equal Treatment Directive (2000/78/EC). They were subsequently consolidated in the Equality Act 2010, Sched 2.

4.5.2.7

The Human Rights Act 1998

The European Convention on Human Rights was applied in this jurisdiction by the Human Rights Act 1998. Article 9 of the Convention, applied by ss.9 and 13 of the 1998 Act, provides for freedom of thought, conscience and religion. It also provides for the right to have non-religious beliefs protected. It is a qualified right and as such the freedom to manifest a religion or belief can be limited, or subject to ‘interference’, so long as that limitation: is prescribed by law; is necessary and proportionate; and pursues a legitimate aim (viz. the interests of public safety, the protection of public order, health or morals or the protection of the rights and freedoms of others).

70 71

Regulation 14(2)(a). See, also, Abrahams v. Cavey [1968] 1 QB 479 at pp. 481–482.

4.5 Legislative Framework: International and Domestic

4.5.2.8

131

The Human Fertilisation and Embryology Act 1990

Amended in 2008, this legislation regulates embryo research and has made possible the creation of an embryo without the need for fertilization by using cell nuclear replacement in unfertilised eggs. It now also governs gene editing. Section 38(1), the ‘conscience clause’, provides that ‘no person who has a conscientious objection to participating in any activity governed by this Act shall be under any duty, however arising, to do so’.

4.5.2.9

The Public Order Act 1986

First enacted in 1908, this Act created the offence of acting in a disorderly manner at a public meeting if the purpose of the disorderly behavior is to disrupt that meeting. Section 4A declares that it is an offence to incite violence and s.5 adds that the “use of threatening or abusive words or behaviour, or disorderly behaviour . . . within the hearing . . . of a person likely to be caused harassment, alarm or distress thereby” will similarly constitute a criminal offence, but not if the language used is simply insulting.

4.5.2.10

The Abortion Act 1967

Revised in 1990, this Act legalises and regulates abortion but restricts availability to certain grounds and requires the procedure to be conducted by registered practitioners. It is available through the National Health Service. The Act permits abortions to be carried out up to the 24th week of pregnancy, subject to certain requirements, but if medically necessitated they may be carried out at any stage; the mother's physical health and mental health may be taken into account when estimating that risk.72 Section 4(1), known as the ‘conscience clause’, states that ‘no person shall be under any duty, whether by contract or by any statutory duty or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection: Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it’.

72

But in Northern Ireland the Abortion Act 1967 does not apply and abortion is legally permitted only if a woman’s life is in danger, or if there is a permanent risk to her mental or physical health.

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4 England and Wales

Framework of Courts and Regulatory Bodies

EU membership brought with it a requirement that the UK accept the superior jurisdiction of the ECJ, it had earlier accepted that of the ECtHR.

4.6.1

International Courts and Regulatory Bodies

Now that the UK has withdrawn from the EU, the direct jurisdiction of the ECJ has been be restricted while the rulings of the ECtHR will cease to be binding; the jurisdiction of certain other international committees will also continue.

4.6.1.1

The European Court of Human Rights (ECtHR)

The ECtHR hears complaints alleging violations of rights enshrined in the Convention and its protocols. In making its determinations, the court is guided by principles such as: ‘proportionality’ and ‘compatibility with democracy’.73 Its decisions are reached in the light of ‘a margin of appreciation’ which permits States a degree of latitude in their interpretation of human rights obligations74 (see, further, Sect. 3. 2.2).

4.6.1.2

The Court of Justice of the European Union (CJEU or ECJ)

Consisting of three distinct courts (Court of Justice, General Court, and Civil Service Tribunal), the CJEU functions as the central court for the EU. Its jurisdiction in respect of England and Wales is uncertain but is at least very restricted. However, its rulings have influenced development of the law (see, further, Sect. 3.3.1.2).

4.6.1.3

The Human Rights Committee (HRC)

This body, established by the ICCPR, monitors progress made on national implementation of Covenant provisions. This is achieved mainly through analysis of and commentary on reports required to be submitted by each member State usually at 4 yearly intervals (see, further, Sect. 3.3.1.5).

73 See, Refah Partisi v. Turkey (2003) 37 EHRR 1, [2003] ECHR 87 when the ECtHR ruled that Shari’a law is not consistent with democracy and therefore the Turkish government was justified in banning a political party seeking to introduce such law. 74 See, for example, Lithgow v. United Kingdom (1986) 8 EHRR 329, Fredin v. Sweden (1991) 13 EHRR 784, Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 EHRR 471.

4.7 Fundamental Human Rights and Conscience

4.6.2

133

Domestic Courts and Regulatory Bodies

Direct responsibility for giving effect to the principle of conscientious objection and to related legislation lies with the domestic UK framework of courts and regulatory bodies but in making their determinations they are required to take into account any relevant rulings of certain European courts.

4.6.2.1

The Equality and Human Rights Commission (EHRC)

Established by the Equality Act 2006, this body acts as the regulator in respect of issues now arising under the Equality Act 2010.

4.6.2.2

The Employment Appeal Tribunal (EAT)

This body determines allegations of rights abuse in the workplace as referred to it on appeal from the Employment Tribunal. In England and Wales, further appeal lies to the Court of Appeal (Civil Division).

4.6.2.3

The Employment Tribunal

This Tribunal, the decisions of which have effect throughout Great Britain—excepting Northern Ireland, hears allegations of discriminatory practices in the workplace.

4.7

Fundamental Human Rights and Conscience

The promotion of diversity is dependent upon the checks and balances that both preserve the integrity of a nation’s cultural identity and facilitate the healthy development of the many and varied independent entities that constitute a pluralistic society. Ultimately, this rests on ensuring that the sincerely held beliefs and values of a dissenting group, organisation or movement are at least heard by others to the extent that they do not unlawfully violate the latter’s rights; a tension which governs dissent in general and the exercise of conscientious objection in particular.

4.7.1

Freedom of Expression

As declared in Article 10 of the ECHR, and fully incorporated into Schedule 1 of the 1998 Act, any interference with this fundamental right requires a high level of

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justification because “everyone has the right to freedom of expression” in the UK.75 However, there are no absolutes in relation to either the ‘freedom’ or the ‘rights’ involved. While there is much to be said for the view concisely expressed by Walker LJ that “in matters of human rights the court should not show liberal tolerance only to tolerant liberals,”76 this is subject to limits; thresholds of tolerance vary according to context. These include constraints imposed by the Public Order Act 1986, the common law provisions governing public order and s.1 of the Protection from Harassment Act 1997 which prohibits individuals from acting in a manner that amounts to harassment of another person, where the perpetrator knows, or ought to know, that the action amounts to harassment.77 The conscientious objections of a proselytiser, however, to the constraints of workplace regulations will not find protection under the right to freedom of expression if their conduct amounts to harassment.

4.7.1.1

Personal Identity Issues

Dudgeon v. United Kingdom78 and Lee v. Ashers Baking Company Ltd, and Others,79 both rooted in the singular religious/cultural context of Northern Ireland and relating specifically to same sex relationships (see, further, below), are nonetheless indicative of the difficulties faced by individuals who take a stand and conscientiously object to prevailing values and beliefs. They also illustrate the importance and difficulties of the principle which states that where a legislative restriction is ostensibly neutral but has a disproportionate effect on a minority then a particularly heavy onus rests on the State to justify it as, for example, in WatkinsSingh80 (see, further, below at Sects. 4.8.3 and 4.8.6.2).

4.7.1.2

Blasphemy and Proselytism

The freedom to express personal beliefs, including for the purpose of influencing others, is subject to the condition that in so doing the rights of those others are not violated. 75

R (Animal Defenders International) v. Secretary of State for Culture, Media and Sport [2008] (UK). 76 R (Williamson & Ors) v. Secretary of State for Education and Employment & Ors [2005] UKHL 15, per Lord Walker of Gestingthorpe at para. 57. 77 See, also, the Communications Act 2003, the Broadcasting Acts of 1990 and 1996 and antiterrorism legislation more generally. 78 Application No. 7525/76, (1981). See, also, Smith and Grady v. United Kingdom, 29 E.H.R.R. 493 (1999). 79 [2018] UKSC 49. 80 R (on the application of Watkins-Singh) v. Aberdare Girls’ High School & Anor [2008] EWHC 1865 (Admin) (EWHC [Admin]).

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135

Blasphemy ceased to be an offence in England in 200881 but proselytism continues to be problematic. For example, Chaplin v. Royal Devon & Exeter Hospital NHS Foundation Trust82 concerned a nurse who chose to express her Christian beliefs by wearing a crucifix with her uniform, contrary to the Trust’s health and safety policy, and refused on religious grounds to desist. The EAT upheld the earlier ruling that the nurse was in a position where her wish to manifest her religious belief might well adversely impact upon the interests of others. The decision would seem to have construed her conduct as passive proselytism rather than a form of conscientious objection to the religious anonymity that resulted from hospital policy. Alternatively, the form of expression may be one of assertive proselytism. This was the case in Hammond v. DPP83 when a Christian preacher who displayed signs reading ‘Stop Immorality’, ‘Stop Homosexuality’ and ‘Stop Lesbianism’ was convicted for causing alarm and distress. Again, in Apelogun-Gabriels v. London Borough of Lambeth,84 the dismissal of an employee for distributing ‘homophobic material’ to co-workers during prayer meetings, was upheld by the employment tribunal which confirmed that the material was offensive and had caused harm to colleagues. In Drew v. Walsall Healthcare NHS Trust85 the EAT upheld the dismissal of a consultant paediatrician whose teamwork was heavily influenced by his faith and included circulating a prayer which he described as a personal inspiration and making religious references in his professional communications. In both Chondol v. Liverpool CC86 and Grace v. Places for Children87 the EAT upheld the firing of staff, who were committed Christians, not because of their beliefs but because they had chosen to manifest them in ways that adversely impacted upon others and were inappropriate in terms of their respective employment responsibilities (delivering a social work service on behalf of a public authority and managing a nursery). Similarly, in Haye v. London Borough of Lewisham,88 a Christian administrative assistant was held to have been justifiably dismissed after posting derogatory views about LGBT practices on the Lesbian and Gay Christian Movement’s website. More recently, in Kuteh v. Dartford and Gravesham NHS Trust89 a Christian nurse who despite warnings, repeatedly engaged in improper proselytising with hospital patients was dismissed, a decision upheld by the Court of Appeal.

81

The Criminal Justice and Immigration Act 2008 abolished the common law offences of blasphemy and blasphemous libel. It ceased to be an offence in Scotland in 2021 but continues to be illegal in Northern Ireland. 82 [2010] ET 1702886/2009. 83 [2004] EWHC 69 (Admin). 84 (2006), ET Case No. 2301976/05. 85 UKEAT/0378/12/SM, 2013. 86 [2009] UKEAT 0298/08/1102. 87 UKEAT/02/17/13/GE. 88 (2010), ET Case No. 2301852/09. 89 [2019] EWCA Civ 818.

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When proselytism becomes harassment it loses any protection it would otherwise have had under freedom of expression.

4.7.1.3

Whistleblowers

Making a disclosure in the pubic interest is a matter recognised and protected by the law of this jurisdiction and reinforced by ECtHR rulings (see, further, Sect. 3.6.4.1). It mandates such conduct and protects those victimised as a consequence of disclosures made—including any public interest engaged by their personal conscientious objections—to workplace practices.

Disclosures and the Law The Public Interest Disclosure Act 1998, amending the Employment Rights Act 1996, provides legal protection for those—‘whistleblowers’—who, being employees or workers in either the public or private sectors, act in good faith by disclosing information in the public interest. It safeguards from “detriment” those at risk of dismissal or other reprisal in retaliation for a whistleblowing disclosure. The disclosure may be made to a “prescribed person” as identified in the Prescribed Persons Order 2014 and the allegation then brought before an employment tribunal.

In a Public Health Context McTigue v. University Hospital Bristol NHS Foundation, for example, concerned an agency worker whose disclosure about malpractice to the authorities in the hospital where she worked, resulted in the termination of her agency worker assignment. Her claim that this was unlawful and that she qualified as a whistleblower was upheld by the EAT. The fact that a disclosure also furthers the whistleblower’s personal interests will not necessarily result in the failure of the public benefit test90 though it will do if that is the sole motive.91

In a National Security Context In keeping with the ‘necessary in a democratic society’ test (see, Chap. 3), freedom of expression is subject to national security considerations as has become clear in the ongoing saga of proceedings relating to Julian Assange, the founder of WikiLeaks, who currently remains in prison in the UK awaiting extradition to the US. Whether

90 91

Chesterton Global Ltd v. Nurmohamed, [2017] EWCA Civ 979. Parsons v. Airplus, [2017] UKEAT/0111/17.

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137

the subject of these proceedings will eventually be convicted of sedition or found to be a legitimate ‘whistleblower’ acting as a conscientious objector to government withholding of information that it would be in the public interest to publish, remains for the court to determine.

4.7.2

Right to Freedom of Association/Assembly

As declared in Article 11 of the ECHR and subsequently incorporated into Schedule 1 of the 1998 Act, this right is essential for those with views representative of minorities, or with objections to some aspects of the status quo, to meet, form associations or to leave them. In practice, the right is constrained by the Public Order Act 1986, s. 14, which gives the police the power to impose conditions on a “public assembly” if they believe that it may result in serious public disorder, serious damage to property or serious disruption to others or that the purpose of the organisers is to intimidate others. In recent years this jurisdiction has seen many groups assemble to demonstrate their collective dissent against government policy and laws.

4.7.2.1

Corporate Entities

Objectors have been active in relation to the risk to female safety if trans persons are allowed to access organisations such as Girl Guides, Women’s Refuges, Rape Crisis Centres, female swimming pools etc.92 The ‘no-platforming’ of or by TERF activists in relation to trans issues has been problematic in many English universities. In some instances the objections of those protesting may well have been from a position informed by their beliefs—conceivably as Christians or Muslims—in which case they could be fairly classified as conscientious objectors. There have also been a rash of cases brought by those conscientiously objecting to the proposed teaching of SOGI related matters in State primary schools (see, further, below at Sect. 4.8.3.1).

4.7.3

Right to Freedom of Religion

The right to freedom of thought, conscience and religion is guaranteed under international law by Article 18 of the Universal Declaration of Human Rights (ECHR, Article 9) in conjunction with Article 18 of the ICCPR and under domestic law by the Human Rights Act 1998, s.9, as supplemented by the Equality Act 2010.

92 See, further at: https://inews.co.uk/news/hampstead-heath-why-people-are-fighting-over-theladies-pond-in-hampstead-heath/.

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The right places a duty of neutrality and impartiality on domestic judicial and regulatory bodies when engaged in matters of religion, belief or conscience.93

4.7.3.1

Manifesting Beliefs

The right of an individual to express their religion/beliefs/conscience is qualified by Article 9(2) which, reiterating the corresponding ECHR clause, requires that any such manifestation be subject to such limitations as are “prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”. A clear link must be made between conduct and belief although, as illustrated in Eweida, the conduct need not be mandated by the belief, it is sufficient that the manifestation is a sincere reflection of an adherent’s commitment.94 In this landmark case for conscientious objection the ECtHR confirmed that job termination was a justifiable penalty for employees who choose to manifest their beliefs in the workplace, contrary to employer requests, by wearing a discreet crucifix on a chain around the neck (Ms Chaplin), refusing to register same-sex partnership (Ms Ladele) and by claiming an inability to counsel same-sex couples due to a conflict with personal morality (Mr McFarlane).

Religion Specific Clothing, Symbols, Customs etc A more ostentatious means of manifesting private beliefs in public—often representing a conscientious objection to the prevailing secularist or Christian cultural environment—is to wear religion specific clothing, jewellery etc. In the latter instance, the courts lean towards accommodation as demonstrated in Playfoot (a minor), R (on the application of) v. Millais School95 when it found that an item of jewelry (a ‘purity ring’) was “representative of a moral stance and not a necessary symbol of Christian faith”. Although, in Chaplin v. Royal Devon & Exeter Hospital NHS Foundation Trust96—which concerned a nurse who refused on religious grounds to stop wearing a crucifix with her uniform contrary to the Trust’s health and safety policy—the domestic court found in favour of the Trust it had tried to make a reasonable accommodation, by suggesting that she wear the crucifix as a brooch or attached to her name-badge lanyard.97

93

See, Re G (Children) [2012] EWCA Civ 1233, at paras. 35–38. Eweida and Others v. UK, Application No. 4820/10, (2013) at para. 84. However, note the EHRC Code 2011, para. 2.61, which indicates that there is no clear dividing line between holding and manifesting a religious belief. 95 [2007] EWHC 1698. 96 [2010] ET 1702886/2009. 97 Author acknowledges advice from Frank Cranmer on this matter (note to author, 18.07.2018). 94

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Any imposed restriction on the right to publicly manifest private religious belief, in terms of uniform and dress codes, requires good reason—such as health and safety requirements. In Azmi,98 for example, the court upheld the earlier Employment Tribunal finding that the beliefs of the claimant—a classroom based bilingual support worker—concerning the veil were “genuine and held by a sizeable minority of Muslim women.”99 It found that the restriction on wearing the niqab was a neutral rule which put the claimant at a disadvantage, but this was justified as it was a proportionate measure given the interests of the children in having the best possible education. However, in Noah v. Sarah Desrosiers (trading as Wedge)100 a Muslim applying for a hairdressing position was held to have suffered indirect discrimination when her employer warned that she would be required to remove her hijab while at work if appointed. The employment tribunal found that the onus on the employer to produce evidence that the wearing of the headscarf would have an adverse effect on the business had not been satisfied. Some years later, in the not dissimilar case of Begum v. Barley Lane Montessori Day Nursery101 the tribunal found that onus to be satisfied when a Muslim claimed that she had suffered religious discrimination at a job interview when told that she would not be permitted to wear a jilbab and therefore had been unable to accept the post. The EAT concluded that the prospective employer was justified in considering that the jilbab might constitute a tripping hazard to staff or to the children in their care. These cases illustrate the everyday nature of conscientious objection as a strategy employed by those who feel a need to manifest their religious identity in a social context that reinforces annonymity.

4.7.3.2

Affirmative Action

The Equality Act 2010, s.158, provides specific opportunities for State affirmative action if it is a proportionate means of addressing the disadvantages of a group with shared protected characteristics102 or subject to discrimination103 and if it serves to encourage a more proportionate take up in activities or services by members of such a protected group. It is only lawful if the statutory criteria are met: it must be ‘reasonably thought’ that one of the conditions applies, such as disadvantage or disproportionately low participation. It permits, for example, targeted bursaries and scholarships where the potential recipients share a particular religious faith or belief.

98

Azmi v. Kirkless Metropolitan Borough Council [2007] UKEAT/009/07. Ibid, at para. 101. 100 ET 2201867/2007. 101 UKEAT/0309/13/RN, 2015. 102 The “protected characteristics” being age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. 103 See, R (Kaur and Shah) v. Ealing LBC [2008] EWHC 2062 (Admin). 99

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Conscientious Objection and Equality: Contemporary Caselaw

The Human Rights Act 1998 Act and the Equality Act 2010, as reinforced by international instruments such as the ECHR, the ICCPR and rulings of the ECtHR, provide the most relevant components of the legislative framework governing conscientious objection. The latter comes into play when contention arises as to whether a claimant can be excused from a statutory duty owed to a member of a group with protected characteristics—age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation—in specified settings such as the workplace on the basis of the claimant’s religion/belief/conscience. In practice, most contemporary caselaw is generated in the context of these categories and involve a claim to exemption from a statutory duty on the basis of a traditional religious belief. However, there are other areas illustrative of the way the law is trending in relation to beliefs and to categories—most obviously the climate change protestors and the ‘anti-vax’ groups—which, although not governed by statutory duties, cannot be ignored and arguably must be taken into account in any assessment of the legitimacy and scope of conscientious objection.

4.8.1

Public Health

Public service providers are legally required to be impartial and ensure that all entitled users have equality of access. However, there is a well-established statutory right for medical practitioners to object on grounds of conscience to involvement in abortion, IVF treatment and to the withdrawal of life-sustaining treatment from a patient who lacks capacity. In addition, while not a legal right, there is an acceptance that medical staff may withdraw, on grounds of conscientious objection, from other procedures; each case being assessed on its merits.104

4.8.1.1

Abortion, Contraception IVF and Surrogacy

Reproductive rights—or the right of every woman to control how, when and why she gives birth—is clearly of crucial importance to all women everywhere including in England and Wales.

See, British Medical Association, ‘Expressions of Doctors’ Beliefs’, (2018) at: https://www. bma.org.uk/advice-and-support/ethics/personal-ethics/expressing-your-personal-beliefs-as-adoctor. 104

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Abortion The conscientious objection of medical staff to participating in abortion procedures is provided for in s.4(1) of the Abortion Act 1967105 and in s.38 of the Human Fertilisation and Embryology Act 1990 as clarified in the HFEA Code of Practice 2019.106 As Lady Dorrian pointed out, this is “a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason”.107 It was a right relied upon by two Catholic midwives in Doogan & Anor v. NHS Greater Glasgow & Clyde Health Board.108 They successfully asserted in a Scottish court that this provision entitled them to refuse to “delegate, supervise and/or support staff in the participation in and provision of care to patients undergoing termination of pregnancy . . . throughout the termination process.”3 As Lady Hale acknowledged, when their claim was upheld on appeal by the UKSC: “refusing for religious reasons to perform some of the duties of a job is likely109 to be held to be a manifestation of a religious belief” although “there would remain difficult questions of whether the restrictions placed by the employers upon the exercise of that right were a proportionate means of pursuing a legitimate aim . . . and the Equality Act 2010 requires that any employer refrain from direct or unjustified indirect discrimination against his employees on the ground of their religion or belief.”110 The UKSC then had no hesitation in stating that the conscientious objector is “under an obligation to refer the case to a professional who does not share that objection”. This advice echoed that of the court in Barr v. Matthews111 “once a termination of pregnancy is recognized as an option the doctor invoking the conscientious objection clause should immediately refer the patient to a colleague”. Nonetheless, there is a strong lobby in the medical profession against such an obligation as to do so as, arguably, it makes the referrer complicit in the very matter from which he/she wishes to be exonerated. The right of medical staff to conscientiously object cannot be exercised in circumstances where it is necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman. It is also a right limited to medical personnel directly involved—‘hands on’—in the procedure itself and does not extend to ancillary treatment or to ancillary staff. This was established in

105

The Abortion Act 1967 does not apply in N. Ireland. Note, however, the Nursing and Midwifery Council (NMC) code, para 20.7, which prohibits nurses from expressing their own personal views in an inappropriate way. 107 Doogan & Anor v. NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36 at para. 38. 108 Ibid. 109 Citing Eweida v. United Kingdom[2013] ECHR 285, 36516/10, 51671/10. 110 Ibid, at paras. 23–4. 111 (1999) 52 B.M.L.R. 217. 106

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Janaway v. Salford Area Health Authority112 when the claim of the plaintiff secretary that she was entitled, on grounds of conscientious objection, not to type letters referring patients to an abortion clinic was dismissed.

Contraception As emergency contraception—the ‘morning after’ pill—is not considered by the World Health Organisation nor by English courts to be an abortifacient, the statutory exemption available to conscientious objectors under the abortion legislation does not apply. In R. (on the application of Smeaton) v. Secretary of State for Health113 the plaintiff had conscientiously objected to pharmacists selling emergency contraception to women over the age of sixteen without a prescription but Munby J advised that “decisions on such intensely private and personal matters as whether or not to use contraceptives, or particular types of contraceptives, are surely matters which ought to be left to the free choice of the individual”. However, following lobbying by Christian medical practitioners, the Faculty of Sexual and Reproductive Health114 issued guidelines in December 2017, permitting consultants, GPs, and nurses who specialise in sexual health to “conscientiously object” on religious or moral grounds to prescribing contraception, subject to their referring the patient to an alternative service provider.

IVF and Surrogacy The Human and Fertilisation and Embryology Act (1990), s.38, states that no person who has a conscientious objection to participating in any activity governed by this Act shall be under any duty, however arising, to do so. It allows nurses, midwives and nursing associates the right to refuse to participate in procedures if they have a conscientious objection and prevents any duty being placed on an individual to be involved in any activity governed by the Act, including the use of embryos for research purposes.

SOGI Related Health Issues The history of judicial deliberation on such issues can probably be dated to the landmark case of Rees v. the United Kingdom115 which concerned the applicant’s objection to the government’s failure to officially recognise his new status following

112

[1989] 1 AC 537. [2002] E.W.H.C. 610 (Admin). 114 See, further, at: https://www.fsrh.org/home/. 115 Application No. 9532/81, (1987). 113

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a sex change operation. This was taken a stage further by the Christine Goodwin case116 when the ECtHR ruled in favour of a trans person who sought legal recognition of her new gender identity because of “the changing conditions within the respondent State and within Contracting States generally” and “evolving convergence as to the standards to be achieved” in the context of official recognition of post-operative transsexual gender identity. Since the Gender Recognition Act 2004 came into effect, trans persons have been able to acquire official documentary evidence—e.g. an amended birth certificate—of their changed gender identity. However, this legislation has given rise to further protests regarding the necessity for a mental health diagnosis as a prerequisite for accessing the gender reassignment process and for the subsequent mandatory medical intervention and from those who fear that proposed amendments will introduce self-declarations, with no medical intervention, as sufficient evidence for official recognition of a gender change.117 In the absence of any evidence that these objections derive from beliefs, religious or otherwise, they cannot be defined as conscientious. In contrast, the more recent case of Dr David Mackereth v. The Department for Work and Pensions & Anor,118 does clearly fall within that definition. The employment tribunal then considered whether a Christian doctor who objected to transgenderism was protected under the Equality Act 2010. The doctor’s beliefs were: that God only created males and females and that a person cannot choose their gender; a denial of transgenderism; and a conscientious objection to transgenderism, with the effect of believing that it would be irresponsible and dishonest for a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex. Moreover, due to his beliefs, he could not in conscience refer to individuals using the pronoun of that person’s choice, as the DWP required. Applying the above mentioned test established in Grainger plc and others v. Nicholson, the Tribunal held that Dr Mackereth’s views were incompatible with human dignity and conflicted with the fundamental rights of others and so were not protected religious or philosophical beliefs under the Equality Act. That in turn meant he could not argue he had been treated less favourably by his employer, because of those beliefs, for discrimination purposes under that legislation (see, further, below at Sect. 4.8.5.2).

4.8.1.2

Medical Practitioners and Assisted Death

The courts regularly decide on cases concerning withholding and withdrawing treatment, and have ruled that prolonging life is not always in the ‘best interests’

116

Christine Goodwin v. United Kingdom, Application No. 28957/95 (2002). This is the position of Fair Play for Women, see further at: https://fairplayforwomen.com/ gender-recognition-act-2004-explained/. 118 [2019] ET 1304602/2018. 117

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of the patient where the latter lacks capacity to decide.119 When such circumstances arise, and a decision to withdraw life-sustaining treatment is taken or determined by the courts, there is no statutory exemption that permits a healthcare professional with a conscientious objection not to participate in such course of action.

Suicide Although the taking of one’s own life by one’s own act has been permissible since suicide ceased to be a crime in 1961, there is no right to be assisted in doing so. Conscientious objection arguments have been unsuccessfully raised by terminally ill patients in a succession of ‘a right to die’ cases including Pretty v. Director of Public Prosecutions and Secretary of State for the Home Department120 and Pretty v. UK.121 The argument then being that one’s own freedom to choose the manner and timing of one’s death should not be restricted by legislation fuelled by religious sensitivities.

Refusing Medical Treatment As has been said: “the right of the competent patient to request cessation of treatment must prevail over the natural desire of the medical and nursing profession to try to keep her alive”.122 Any adult is entitled to make an informed decision to refuse any form of treatment, including blood transfusions, even if by so doing they risk certain death.123 The right to conscientious object to life-saving medical treatment is restricted to persons capable of making an informed decision. Children, therefore, or those suffering from mental illness or mental incapacity, are unable to do so and their parents or guardians are not entitled to refuse treatment on their behalf. This has been an established principle since at least R v. Senior124 when a father was convicted of manslaughter following his failure to provide his child with medical assistance due to the beliefs of the cult to which he belonged that considered such action showed insufficient faith in God and the power of prayer. More recently there have been

119

See, for example, Aintree University Hospitals NHS Foundation Trust (Respondent) v. James (Appellant) [2013] UKSC 67, at para 35. 120 [2001] UKHL 61. 121 Application No. 2346/02, (2002). 122 Re B (Adult Refusal of Medical Treatment) [2002] EWHC 429 (Fam), per Dame Butler-Sloss P at para 27. 123 Ibid. See, also: Re JT (Adult Refusal of Medical Treatment) [1998] 1 FLR 48; Re AK (Medical Treatment: Consent) [2001] FLR 129; and Newcastle Upon Tyne Hospitals FT v. LM [2014] EWHC 454 (COP). 124 [1899] 1 QB 283.

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many cases in which the courts have overridden a faith based parental veto on blood transfusions for children of Jehovah Witnesses.125 Any lawful exercise on the part of medical staff of the right to conscientious object is subject to the condition that the person concerned first identifies an alternative professional to undertake medical responsibility.

Medically Assisted Voluntary Death It is a different matter when medical practitioners are requested by a patient to actively assist in arrangements intended to cause the latter’s death. While there is no legal right to do so, the UK General Medical Council offers the following guidance to medical practitioners with conscientious objection to prolonging suffering at the end of life:126 You can withdraw from providing care if your religious, moral or other personal beliefs about providing life-prolonging treatment lead you to object to complying with: (a) a patient’s decision to refuse such treatment or (b) a decision that providing such treatment is not of overall benefit to a patient who lacks capacity to decide.

Such withdrawal is made conditional upon a referral to others willing to undertake treatment responsibility. As of 2021, assisting in the death of another at their request is a crime in England and Wales under s.2 of the Suicide Act 1961127 though, under the same section, distributing a booklet giving advice on how to do so is not. There are, of course, many conscientious objectors both for and against introducing legislative provisions to change the law.

4.8.1.3

Blood and Organ Donations

The scandal in the 1970s and 80s—in which some 4000 people were infected with HIV and hepatitis C from contaminated blood causing at least 1200 deaths— continues to overshadow voluntary donations and professional involvement in such procedures.128 Until 2021, blood donations from gay men had been prohibited in this jurisdiction, a fact that had attracted considerable protest—from activist groups such as FreedomToDonate—alleging unfair discrimination. Since then while donations 125

See, for example, Re R (A Minor) (Blood Transfusion) [1993] 2 FLR 757. See, ‘General Medical Council, Treatment towards the end of life: good practice in decisionmaking’, London, UK, 2010, at p. 41. 127 R (Nicklinson) v. Ministry of Justice; R (on the application of AM) v. The Director of Public Prosecutions [2014] UKSC 38. 128 See, further, the Infected Blood Inquiry at: https://www.infectedbloodinquiry.org.uk. 126

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have been possible they are subject to conditions which some argue continue to discriminate and stigmatise the LGBT community; though such arguments do not, per se, constitute conscientious objections. The Human Tissue Act 2004, replacing the Human Organs Transplant Act 1989, provides the current legal framework for decision making in relation to organ donation and transplants. Although legally permissible and frequently authorised, organ donation in practice is very often vetoed by the deceased donor’s family due to their conscientious objection, usually based in religious belief, to such alteration in bodily integrity before burial. There is no legal right for medical staff to be exempted from involvement in organ donation/transplant procedures on grounds of conscientious objection. Informally, however, there is a practice of allowing staff to withdraw if involvement would be contrary to their beliefs.

4.8.1.4

Vaccination

More than a century ago, in the Vaccination Act 1898, legislative recognition was given to the parental right to refuse smallpox vaccinations for their children if they deemed it useless and/or dangerous. This followed 45 years of contention when compulsory vaccinations had been refused by many. Since then, given the established parental right of refusal, there have not been many cases where the issue has come before the courts and when it has this is most often in respect of a child where parental consent is not available or is being disputed. The maternal refusal, in LCC v. A & Ors,129 to allow her children to be vaccinated—because of a belief that this would carry a risk of autism—was overruled by the judge who held that the children concerned should receive immunisations appropriate to their age in line with the recommendation of the expert medical evidence before the court. So also in SL (Permission to Vaccinate)130 when the Family Court found that the alleged risks associated with vaccinating a young baby the subject of a care order, against the wishes of the mother, were outweighed by the benefits of immunisation by a clear margin. The court concluded that the interference with the mother’s right to respect for family life under Article 8 of the ECHR was justified and proportionate and granted permission, under its inherent jurisdiction, for the child to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine. This was followed by B (A Child: Immunisation)131 when the court considered the case of a 5-year-old girl who, until her parents separated, had received all the recommended vaccinations but they were now unable to agree as to further immunisation. Bellamy J concluded, on the basis of expert medical testimony, that it was in the child’s best welfare interests to receive

129

[2011] EWHC 4033 (Fam). 2017 EWHC (Fam) EWHC. 131 [2018] EWFC 56. 130

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the vaccinations. In these instances the objections and claims for exemption are clearly driven by concerns regarding the vaccine efficacy, rather than by beliefs, and therefore cannot be classified as conscientious.

Law, Government and Vaccination in the Covid-19 Pandemic The government chose not to activate the powers available to it under the Civil Contingencies Act 2004. Instead, in common with other Part III democratic societies, it turned to public health legislation. In this instance it was the Public Health (Control of Disease) Act 1984 that provided the Secretary of State for Health with the authority to issue regulations to combat outbreaks of disease, authority that may extend to include mandatory vaccination in a pandemic. This was supplemented by the Coronavirus Act 2020 and a series of Health Protection regulations dealing with specific matters including the requirement to self-isolate, to wear face coverings and as regards international travel. Subsequent amendments to the 2020 Act, together with the provisions in Schedule 21, provided powers such as requiring individuals: to undergo screening and assessment; to provide documents, information and answer questions; and, if infectious, to be isolated and subject to contact tracing. Further requirements followed in terms of official guidance in relation to matters such as social distancing and vaccination. Most pandemic related legislative constraints were revoked or eased in summer 2021. While the right of vaccination refusal was accommodated, it remained the case that the requirement, under the Health and Safety at Work Act 1974, for employers to take reasonable steps to reduce workplace risks and for employees to co-operate, continued to provide the relevant legal framework in a workplace setting. By mid-2021, employers in the hospitality industry were beginning to require staff to show evidence of vaccination and in some public venues were requiring similar evidence to access services. As regards the vaccination of children, the recent ruling of MacDonald J in M v. H and Others132 may in time be viewed as prescient. Upholding the father’s application—opposed by the mother—to have their children vaccinated, the judge commented “it is very difficult to foresee a situation in which a vaccination against Covid-19 approved for use in children would not be endorsed by the court as being in a child’s best interests”. This opinion can be contrasted with the government view, in September 2021, that universal vaccination for teenage children could not be justified solely on the grounds of prospective benefits to those children, notwithstanding an acceptance that this would have beneficial effects for the population as a whole, both by reducing the likelihood of transmission and by strengthening the probability of achieving ‘herd immunity’. Later, the government continued its reluctance approach by launching a public consultation regarding the possible mandatory vaccination for health care staff.

132

(private law vaccination) [2020] EWFC 93.

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4.8.2

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Social Care Services

Accessing public benefit social care services, paid for by public taxes, has most often been seen as a basic right and one in which user protest is usually directed towards issues of quality and delivery but there are some circumstances where such services attract user protest on grounds of conscientious objection.

4.8.2.1

Adoption and Foster Care

The issue of balancing public service availability against the conscientious objections of contracted providers has created considerable disruption among statutory and voluntary child care service providers in this jurisdiction.

Service Refusal A decade ago the difficulties inherent in balancing competing value systems became apparent in two cases of conscientious objection involving child care services. In R (on the application of Johns) v. Derby City Council133 members of the Pentecostal Church with strong religious views against homosexuality, were rejected as prospective foster carers by Derbyshire County Council. Munby LJ, following the decisions in Ladele134 and McClintock,135 reasoned that the rejection was due to their stance on sexual orientation not because of their religious belief, which is arguably a dubious distinction. He took the view that the Council was entitled, indeed required, to ensure that its public service provision was compliant with equality and non-discrimination legislation—a rationale subsequently endorsed by the ECtHR which ruled, in relation to both applicants, that their employer pursued a legitimate aim—to provide public services without discrimination.136 In the same year and on much the same issue, the Catholic Care adoption agency refused to provide its services to same-sex cohabiting couples or civil partners (or to unmarried couples), on the basis that to do so would be contrary to the tenets of the Roman Catholic Church.137 In the High Court, Briggs J advised that the services could be restricted on the basis of sexual orientation only if the restriction amounted to a proportionate means of achieving a legitimate aim. The regulatory authority

133

(2011) EWHC 375 (Admin). Ladele v. London Borough of Islington [2009] EWCA Civ 1357. 135 McFarlane v. Relate Avon Ltd [2010] EWCA Civ B1; [2010] IRLR 872. 136 Eweida and Others v. United Kingdom, [2013] ECHR 37. 137 See, Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales [2011] EqLR 597. 134

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concluded that this test was not satisfied because of the public nature of its activities, a decision subsequently endorsed by the First-tier Tribunal (Charity).138

4.8.2.2

Social Care Facilities and Benefits

Nonprofit voluntary and community organisations may often have either a clear religious identity or be staffed by those who do, which provides a context conducive to conscientious objections. For example, Muhammad v. The Leprosy Mission International139 concerned a Muslim plaintiff who had applied for the position of finance administrator in an organization that required an applicant incumbent to be “a practising Christian committed to the objectives and the values” of the organisation. His protest, on failing to obtain the post, could be viewed as a conscientious objection and/or as an allegation of discrimination but the Tribunal found that being a practicing Christian was a genuine occupational requirement and ruled against him. The driving force for modernising pensions law—ensuring it addresses SOGI issues and becomes more human rights compliant—has come from the EU, mainly from rulings of the ECJ, following litigation initiated by individuals objecting conscientiously to being disadvantaged by laws and regulations premised on a value system that excluded them.140

4.8.2.3

Public Officials: Marriage Registrars etc

Two cases, both concerning public officials whose conscientious objection to same sex marriage resulted in their dismissal, established at an early stage the firm approach that judicial and regulatory bodies in this jurisdiction would thereafter adopt when applying the requirements of equality legislation to balance considerations of contractual public duties against an individual’s beliefs and any resulting disadvantage to the public.141

138

See, also, St Margaret’s Children and Family Care Society v. OSCR [2014] SCAP App 02/13 which found in favour of the Society on very similar facts. 139 ET 2303459/09. 140 See: Grant v. South-West Trains Ltd Case C-249/96 [1998] ECR I-621; K.B. v. NHS Pensions Agency Case C-117/01 (2004); Sarah Margaret Richards v. Secretary of State for Work and Pensions Case C-423/04 (2005); Courten v. UK Application No. 4479/06, (2008); and M. W. v. UK Application No. 11313/02, (2009). 141 An approach in sharp contrast with that adopted in some European countries—such as Sweden and Finland—where there is no legal provision for exemption from public service duties on grounds of conscientious objection.

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Marriage Registrars In Ladele v. London Borough of Islington142 the Court of Appeal considered the dismissal of Ms Ladele, a Christian marriage registrar, who had a conscientious objection to registering same-sex “civil partnerships”. The court took the view that the registration process was a public service, that it had significant human rights implications for the community and that administering the process formed part of Ms Ladele’s contractual duties. It noted: “the effect on Ms Ladele of implementing the policy did not impinge on her religious beliefs: she remained free to hold those beliefs, and free to worship as she wished.”143 It concluded that:144 Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; . . .

Essentially, while the court accepted that Ms Ladele had a genuine conscientious objection as a consequence of suffering indirect discrimination due to a law of universal application—adherence to which would cause her to violate her religious beliefs—nonetheless the merits of her objection were outweighed by other considerations.145 Again, in McFarlane146 (see, also, below at Sect. 4.8.5.2) which concerned a charity that provided relationship support including counselling. Mr M, a relationship counsellor, had been dismissed when he indicated to his employer that he did not approve of same sex relationships on biblical grounds and did not wish to be involved in counselling such couples. The court, following the approach it had earlier adopted in Ladele,147 ruled that the fact that he had a bona fide conscientious objection and had suffered indirect religious discrimination was insufficient to justify refusal of contractual duties and breach of equality and non-discrimination provisions. Both decisions were subsequently upheld on appeal to the ECtHR.

142

[2009] EWCA (Civ) 1357. Ibid, per Lord Neuberger at para. 51. 144 Ibid, the Master of the Rolls (with whom Dyson and Smith LJJ agreed) at para. 52. 145 Interestingly, as Paul Weller points out “this contrasts with rulings in Dutch law which, in the face of similar cases, sought (I believe) to distinguish between the position of such staff appointed after changes in the law to reognise same sex civil partnerships, and staff who were in place before the law was changed” (note to author: 26.10.21). 146 McFarlane v. Relate Avon Ltd [2010] EWCA Civ 880 (EWCA [Civ]). 147 [2009] EWCA Civ 1357, [2010] IRLR 211. 143

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Magistrates Page v. Lord Chancellor & Anor148 concerned a magistrate who, while sitting as a member of the family panel, expressed views, based on his beliefs as a Christian, about the inappropriateness of the adoption of a child by a same-sex couple and declined to sign an order approving such an adoption. He was subsequently removed from the magistracy. His complaint to the Employment Tribunal that his removal constituted unlawful discrimination and/or harassment in relation to his religion or belief and/or victimisation was dismissed, as was his appeal to the Employment Appeal Tribunal and to the Court of Appeal. Insofar as his complaint was grounded on personal convictions recognised in Forstater149 as constituting ‘beliefs’ and given that he was acting in accordance with his conscience—whether misguided or not—his objections must be considered conscientious.

Other Public Officials McClintock v. Department of Constitutional Affairs150 concerned a JP member of a statutory panel who sought to be excused from officiating in cases where he might have to decide whether same-sex partners should adopt children, and who resigned when his request was refused. The EAT found that McClintock had not been disadvantaged because of any religious belief he held and that, even if he had been, such discrimination would have been justified. A year later the above decision in Ladele underlined the firm approach taken by courts and regulatory bodies in relation to public officials and their claims to exemption from statutory responsibilities on grounds of conscientious objection. Page v. NHS Trust Development Authority151 (these parallel proceedings concerned the same claimant as in the above magistracy case and were similarly concluded) in common with the already mentioned cases of McClintock, Johns, McFarlane, Ladele, Catholic Care and Mackereth all concerned providers of public services who refused, on grounds of conscientious objection, to perform contractual duties because of their antipathy towards the LGBT community.152 In all, the outcomes indicate that in this jurisdiction such grounds cannot justify a refusal to deliver services in accordance with contractual duties if, as a consequence, the rights of those with a service entitlement are disproportionately adversely affected. These cases would seem to highlight a lack of consistency in the way the law treats conscientious objection. In those instances the public officials concerned were

148

[2021] EWCA Civ 254. Forstater v. CGD Europe & Ors (Religion or Belief Discrimination), [2021] UKEAT 0105 20 1006. 150 [2008] IRLR 29. 151 [2021] EWCA Civ 255. 152 See, also, Greater Glasgow Health Board v. Doogan and Wood, [2014] UKSC 68. 149

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denied exemption from their service provision duties on the grounds of their beliefs. In other instances, however—such as the provision of abortion services, contraception, blood transfusions for the children of Jehovah Witnesses—public service providers have been able to rely on exemptions on just such grounds. It is somewhat unclear whether this differentiation in treatment is based on the type of belief, the nature of the service, contractual obligations, or a disproportionate effect on service users. The recent case of Rowley v. Minister for the Cabinet Office153 might also be mentioned in this context. The complaint of the plaintiff, a deaf parent, concerned the lack of sign language in the government’s Covid-19 briefings which, she claimed, breached its obligations under equality legislation to make the briefings accessible to all, including deaf people. Given that some 350 other deaf people stood to gain from her successful litigation, and that what they all had in common was a disabilty rather than a shared set of beliefs, this case more closely resembles a class action than a conscientious objection. The Conscientious Objection (Medical Activities) Bill 2017 was introduced in Parliament as a private Peer’s bill to clarify for medical professionals their right to refuse to participate in service delivery, on grounds of conscientious objection, but so far this exemption has failed to become law.154

4.8.3

Public Education

Since 1870, the Education Acts have contained a ‘conscience clause’ permitting parents to withdraw their children from the religious worship or instruction provided in public schools.155 Otherwise, religious education continues to be mandatory for pupils of all ages throughout the State education system, regardless of their beliefs or lack of them.156 This has been a constant issue for conscientious objectors. However, under s.7 of the Education Act 1996 as reinforced by the ECHR, Article 2 of Protocol 1, parents may opt for home schooling.

4.8.3.1

Schools, Teachers and Parents

Providing for equality in rights of access to education is clearly crucial in a democratic society. As regards biased criteria for determining such access, the

153

[2021] EWHC 2108 (Admin). Author acknowledges advice from Frank Cranmer on this matter (note to author, 24.05.19). 155 Followed by the Education Act 1944, s. 25(4). 156 The Education Act, 1944, as amended by the Education Reform Act, 1988, and the School Standards and Framework Act, 1998, accompanied by the 1994 Act. 154

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seminal JFS case157 is now the most important in this field. It concerned the rules of admission to a Jewish school that had, for fifty-two years, required a child—in accordance with Orthodox Jewish doctrine—to have a mother who was either born Jewish or whose conversion was accepted as valid by the Office of the Chief Rabbi. A father whose son, born to a mother who had been converted to Judaism but whose conversion was not so validated, conscientiously objected to the rule as offensive to his religious principles. The High Court determined that a school in receipt of State funding could not so discriminate in its admission policy. Subsequently, the UKSC, in a majority ruling, found that what in the High Court had been characterised as religious grounds were, in fact, racial grounds, notwithstanding their theological motivation, and no faith school could be excused from the prohibition on race discrimination. Corporal punishment in schools has been a focus for conscientious objectors. One such was the conscientious objection in Campbell and Cosans v. UK158 of two mothers, on philosophical grounds, to the use of physical punishment in the school where their children were pupils (see, further, Chap. 3). The reverse conscientious objection, in R (Williamson) v. Secretary of State for Education and Employment,159 concerned a group of Christian parents and teachers who failed in their challenge regarding a ban on corporal punishment in schools. The ban, they argued, breached their right to manifest a collective belief that to spare the rod was to spoil the child. This was dismissed by the court. More recently, in (R) The British Humanist Association v. LB of Richmond upon Thames,160 the court considered and dismissed an objection—possibly but improbably conscientious—to the opening of new Catholic primary and secondary schools which claimed that this would mean operating an admissions policy focused predominantly on children who are Catholic, rather than being more widely available to children resident in the area.

Religion Specific Clothing: Teachers In this jurisdiction there has never been any legal prohibition preventing the wearing of clothing—including turbans or burqas—denoting personal religious or ethnic affiliation and indicating a private conscientious objection to prevailing public secularism. In Azmi161 the EAT upheld the earlier employment tribunal finding that the beliefs of the claimant—a classroom based bilingual support worker—concerning the veil were “genuine and held by a sizeable minority of Muslim women.”162 It 157

R (E) v. Governing Body of JFS, [2009] UKSC 15. [1982] ECHR 1. 159 [2005] UKHL 15, [2005] 2 AC 246. 160 [2012] EWHC 3622 (Admin). 161 Azmi v. Kirkless Metropolitan Borough Council [2007] UKEAT/009/07. 162 Ibid, at para. 101. 158

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found that the restriction on wearing the niqab was a neutral rule which put the claimant at a disadvantage, but was justified as it was a proportionate measure given the interests of the children in having the best possible education. Some years later, in Begum v. Barley Lane Montessori Day Nursery,163 a Muslim woman conscientiously objected to being refused a post in a nursery because of her insistence on wearing a jilbab which the prospective employer considered might constitute a tripping hazard to staff or to the children in their care. The EAT concluded that the employer’s reservations were justified. These are just some of the many cases involving the wearing of garments, jewellery, hairstyle or other religiously indicative accoutrements by individuals wishing to publicly indicate their particular beliefs in a conscientious objection against the anonymity of their working environment.

Religion Specific Clothing: Pupils In Mandla (Sewa Singh) and another v. Dowell Lee and others164 a Sikh boy was denied admittance to a private school, because he refused to comply with the school uniform requirement to cut his hair and remove his turban. His right to refuse was upheld by the House of Lords. In Begum,165 the House of Lords considered the wish of a schoolgirl to wear the jilbab in keeping with the professed religious beliefs of herself and family, despite the prohibition on doing so in the school dress code. The court heard evidence that the wearing of the jilbab was not considered necessary by a considerable proportion of those who shared the plaintiff’s religious beliefs, but nonetheless upheld her right to consider it to be so. Shortly afterwards, in WatkinsSingh,166 the court similarly upheld the right of a Sikh schoolgirl to wear a kara—a Sikh religious bangle—contrary to school uniform policy prohibiting the wearing of jewellery. These cases have in common the conscientious objection of a pupil, and their parents, to school rules of universal application that had the effect of indirectly discriminating against minorities in a manner that violated their religious beliefs and religious identity and which were not justified by any countervailing considerations of sufficient weight.

Prayers, Symbols and Religious Ceremonies etc Daily collective prayer or worship of “a wholly or mainly . . . Christian character” is practised in schools in England and Wales. Moreover, the law requires that religious

163

UKEAT/0309/13/RN, 2015. [1983] 2 AC 548. 165 R (On the application of Begum (by her litigation friend, Rahman) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15 (HL). 166 R (on the application of Watkins-Singh) v. Aberdare Girls’ High School & Anor [2008] EWHC 1865 (Admin) (EWHC [Admin]). 164

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education in State funded schools be provided for all children between the ages of three and 19 and that it should reflect the predominant place of Christianity while taking into account the teachings and practices of other principal religious groups in the country. These practices have generated a considerable body of conscientious objections from independent bodies,167 as well as from non-Christian and irreligious parents.

SOGI Related Issues The Equality Act 2010, s.85, makes it unlawful for a school to discriminate against, harass or victimise a pupil or potential pupil: in admissions; in the way it provides education, or any benefit, facility or service; and by excluding a pupil or subjecting them to any other detriment. Moreover, it makes it unlawful for a school to discriminate against a pupil or prospective pupil by treating them less favourably because of the protected characteristics which include sex, sexual orientation and gender reassignment.168 The group of religious parents in Colchester, R. (On the Application Of) v. Secretary of State for Education,169 challenging the incorporation of SOGI related information in teaching material on the grounds that it constitutes an ‘unlawful interference with important parental rights’, can be fairly viewed as collectively asserting a conscientious objection.

4.8.3.2

Educational Content

The conscientious objection of plaintiffs in R (Fox & Ors) v. Secretary of State for Education170 proved successful when the court then accepted their contention that the school education syllabus in effect gave priority to religion at the expense of other systems of belief and non-belief.

SOGI Related Curriculum Content From September 2020 the Department for Education has required that all children be taught about SOGI issues as part of compulsory relationship and sex education 167

See, for example, AHRC Network report, Collective Worship and Religious Observance in Schools: An Evaluation of Law and Policy in the UK, 2015 at: http://collectiveschoolworship.com/ documents/CollectiveWorshipReligiousObservanceAHRCNetworkReport13November2015.pdf. 168 Reinforced by the Education (Independent School Standards) Regulations 2014 which includes a curriculum obligation to encourage respect for other people, paying particular regard to the protected characteristics set out in the 2010 Act. 169 [2020] EWHC 3376 (Admin). 170 [2015] EWHC 3404 (Admin).

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(RSE) classes and in keeping with the Ofsted policy of promoting fundamental British values, which has generated prototype programmes such as ‘No Outsiders’. This is mandatory in all primary and secondary schools but parents retain their traditional right to conscientiously object and withdraw their children from such classes at secondary level; the fact that they have lost their right to do so in relation to children in primary school is highly contentious in the light of Protocol 1 of the ECHR. This policy is facing resistance most vociferously from Muslims, ultraorthodox Jews and evangelical Christians but also more generally from those who claim that there can be no ‘age-appropriate’ way to teach primary school age children about homosexual relationships or transgenderism. There are ongoing protests—particularly from Muslims lobbying under the ‘Islam RSE’ banner.

4.8.3.3

Faith Schools

These now constitute a third of all UK schools and are overwhelmingly Christian— mostly Church of England or Catholic, though some are Muslim or Sikh—are attended by nearly one-quarter of all pupils and are exempted by the Equality Act from the general prohibition on religious discrimination.171 The latter exemption permits an extensive range of discriminatory practice, including: preferential treatment in terms of funding to become established; permission to discriminate in pupil admissions172 and staffing;173 a teaching curriculum skewed in favour of religious belief; and a corresponding alignment of social values in regard to issues such as gay marriage, abortion etc; though they are not entitled to State subsidized transport.174 All of which generates conscientious objections, especially from secular parents, teachers and organisations. The gender segregation and educational content of teaching in some Muslim schools has been a particular focus for such objections.175

4.8.3.4

Colleges/Universities

As might be expected, the freedom of conscience, belief and expression is a greatly valued attribute of higher education, particularly in a society which places a premium on equality before the law.

171

Equality Act 2010, Sch. 11, pt 2. See, School Admissions Code, 2015, at: https://www.gov.uk/government/publications/schooladmissions-code%2D%2D2. 173 See, School Standards and Framework Act 1998, as amended, at: http://www.legislation.gov.uk/ ukpga/1998/31/contents. 174 Diocese of Menevia & Others v. City & County of Swansea Council [2015] EWHC 1436 (Admin). 175 See, for example, HM Chief Inspector of Education, Children’s Services and Skills v. The Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426. 172

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LGBT Related Issues University staff and students are as susceptible to prejudice and as subject to equality laws as everyone else, but should they publicly express views indicating that their private values are at variance with both those of the university department they represent and of equality legislation then their prejudices may become a disciplinary matter for the relevant regulatory authority. One of many such instances—some relating to Christian Unions and Student Unions more broadly—was R (Ngole) v. University of Sheffield176 which concerned a student on a social work course who posted on Facebook his belief that homosexuality was sinful thereby allegedly bringing his course into disrepute and raising questions as to his suitability as a social worker, which in turn led to his suspension by the university. The Court of Appeal found the disciplinary proceedings to have been flawed and unfair to the appellant: there was no good reason to believe that his theological views about homosexuality were a bar to his practising as a social worker; and a blanket ban on the expression of views was not in accordance with the relevant professional code or guidance. It might be added that leaving aside the verdict, the rationale for the appellant’s stance is sufficiently close to that of the claimant in Forstater177 (see, further, above at Sect. 4.2.1.2) for him to be similarly entitled to be regarded as representing a belief and his protest to qualify as a conscientious objection. The status of trans persons has become contentious in some universities and colleges. The proposed changes to the Gender Recognition Act 2004, allowing trans people to have their preferred gender legally recognised without having to produce evidence of medical involvement, have triggered considerable vitriol, ‘no platforming’ and accusations of transphobia etc in a number of UK universities. Some academics object to trans self-identification as they fear this may endanger females in general. Others object to the current law, which requires trans persons to be treated as mentally ill and to undergo medical treatment, and strongly maintain that such discrimination accentuates the vulnerability of trans people. Arguably, for those whose protests derive from their religious beliefs, this constitutes conscientious objection.

Affirmative Action There is not the same policy in the UK as in the U.S., to purposefully and strategically advance the interests of members of socially disadvantaged groups by means of affirmative action. This difference is reflected in the virtual absence of court cases compared to the many in the U.S. on educational issues, particularly as regards a preferential weighting in relation to college admissions for minority group

176

[2019] EWCA Civ 1127. Forstater v. CGD Europe & Ors (Religion or Belief Discrimination), [2021] UKEAT 0105 20 1006. 177

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applicants. However, s.159 of the Equality Act 2010 does allow a UK employer to favour an applicant or employee with a protected characteristic (e.g. race, sex or age) relative to others when all other factors are equal and the religious exemption permits religious organisations greater discretionary latitude in an employment context (see, further, below at Sect. 4.8.5.1).

4.8.4

Public Defence and Security

An inevitable consequence of the legal broadening of what constitutes ‘religion’, ‘belief’ or ‘conscience’ has been a corresponding growing complexity in the traditional interpretation and role of conscientious objection.

4.8.4.1

Military Issues

The relevant procedures applicable to those wishing to be exempted from service in the nations’ armed forces on grounds of conscientious objection is as stated in Instruction No. 6 (D/DM(A) 7/5/3(M1(A)) ‘Retirement or discharge on the grounds of conscience’.178

Service in the National Armed Forces As mentioned above, following recognition of Quaker entitlement to exemption from active military service, the right of anyone to conscientiously object to bearing arms has since been recognised by the law. Quakers, however, object not only to serving in a combat role in the armed forces but also to paying taxes or rates that could be used by the Exchequer to fund the military. The law has resolutely refused to recognise any such extension from objecting to bearing arms to furthering the purpose of war. The fact that the beliefs of an individual regarding their personal involvement in the use of lethal force does not extend to ancillary activities was emphasised in Arrowsmith v. United Kingdom179 when it was found not to include the distribution of leaflets to soldiers urging them to resist deployment to Northern Ireland.

178 179

See, further, at: www.wri-irg.org/pdf/co_uk_army.pdf. (1978) 19 DR 5.

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Transgender Military Personnel Trans persons have been permitted to enlist in the British armed forces since the turn of the century.

4.8.4.2

Prisoners and Asylum Seekers

Most asylum seekers in the UK originate from Muslim countries where SOGI related issues are socially unacceptable and, because they are known to attract unusually harsh punitive treatment, refugees from those countries with such issues rely upon them as grounds for asylum. Homophobic violence can also be problematic in UK prisons. Both contexts give rise to circumstances in which individuals can be at a high level of risk of violence and to associated conscientious objections.

Prisoners Arguably, the hunger strike and resulting deaths of Bobby Sands and other IRA prisoners in British jails during 1980–81 constituted a conscientious objection situation, but perhaps not as it might seem: the strikers cannot be so defined as their cause was stridently political, they wanted the status of political prisoners; those doctors and other medical staff who refused to force feed the prisoners, because they did not believe in non-consensual medical treatment, could be so defined; a matter of individual conscience engaged the latter but not the former. Health and safety concerns have driven prolonged policy debates regarding the appropriate conditions for imprisoned trans persons. In AB, R (on the application of) v. Secretary of State for Justice & Anor180 a 27 year old pre-operative trans (mtf) with a gender recognition certificate objected on principle and on the grounds of personal safety to being incarcerated in a male prison. The court concluded that there had been a violation of Article 8 of the ECHR due to the extent of the constraint on her personal autonomy.

Asylum Seekers The Convention on the Status of Refugees provides that members of social groups are entitled to asylum in States that are parties to the Convention if they can establish a well-founded danger of persecution if returned to their home country. Organisations such as Stonewall,181 have for years lobbied government and sought to raise

180

[2009] EWHC 2220 (Admin). Stonewall reports ‘No Going Back’ (2010) and ‘No Safe Refuge’ (2016) at: https://www. stonewall.org.uk/our-work/blog/no-safe-refuge-lgbt-asylum-seekers.

181

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public awareness regarding the many refugees with SOGI related issues that meet the definition of those likely to face persecution, at the hands of those in Muslim countries who conscientiously object to such issues, and who should therefore be offered asylum rather than deportation. Until the UKSC 2010 decision in HJ (Iran) and HT (Cameroon)182 asylum seekers in the UK were not viewed as having any special rights under the Asylum and Immigration Appeals Act 1993 to avoid deportation on SOGI related grounds. If the immigration authorities considered it would be “reasonable” to expect them to be “discreet” on return to their home country, and that by so doing they could avoid persecution, then they would be deported. The UKSC, however, found that requiring a refugee to hide their sexual orientation in order to avoid persecution would amount to requiring that person to deny their identity, an implied right within Articles 6 and 8 of the ECHR as incorporated within Schedule 1 of the 1998 Act, therefore he or she satisfied the definition of ‘refugee’.

4.8.5

Employment

The relevant legal framework for conscientious objection in an employment context is provided by the Equality Act 2010, s.15(4) of which requires related issues to be resolved by taking into account the Code of Practice on Employment 2011, paras 2.50–2.61. Article 9 of the European Convention and the Framework Equality Directive 2000/78/EC are also important (see, further, Sect. 3.2.2).

4.8.5.1

Right of Employers to Hire and Fire

In this jurisdiction the religious exemption, permitting religious organisations to hire and fire as necessary to ensure compliance with their religious beliefs, is subject to constraints.

Religious Organisations Where being of a particular gender, race, religion or sexual orientation is a genuine occupational requirement, then an employer—including a religious organisation—is legislatively permitted to discriminate by expressly restricting staff recruitment accordingly.183 In order to avail of the religious exemption an employing religious organisation must be able to show that the duties of the post require the holder to

182

[2010] UKSC 31. See: the Framework Directive EC (2000/78), Article 4(2); the Equality Act 2010, Sched 9(2); and the Employment Equality (Religion or Belief) Regulations 2003, Regulation 7(3). 183

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comply with the organisation’s beliefs. Not all employers will be in that position. Hender & Sheridan v. Prospects for People with Learning Disabilities,184 for example, concerned a Christian organisation that provided housing and day-care for people with learning disabilities which introduced a policy based on its Christian ethos whereby it would recruit only practicing Christians for the vast majority of roles (except cooking, cleaning, gardening, maintenance), as those in post might have to lead prayers or give spiritual guidance.185 Sheridan, a manager who conscientiously objected to being forced to hire only Christians, had his protest upheld by the EAT. Again, in Glasgow City Council v. McNab,186 the EAT upheld a similar objection from a pastoral care teacher who claimed that the requirement that a teacher be Roman Catholic was not a genuine occupational requirement for appointment to the post of pastoral care teacher.

Secular Organisations The Equality Act 2010 prohibits discrimination (direct or indirect), harassment and victimisation on the basis of an employee’s religion or belief. Employees also have protection under the Human Rights Act 1998 which extends the right to freedom of thought, belief and religion and the right to freedom of protection from discrimination, as provided under Articles 9 and 14 of the European Convention on Human Rights respectively. Conscientious objections were initially almost routinely rejected on the basis that an acceptance of the contractual terms of employment nullified any subsequent grounds for refusing to undertake duties for reasons of religious belief.187

SOGI Related Issues P. v. S. and Cornwall County Council188 concerned a trans person who had been dismissed after informing her employers that she was undergoing gender reassignment. The Employment Tribunal accepted that her disclosure had been the cause of her dismissal but referred the matter to the ECJ for a preliminary ruling under the terms of the Equal Treatment Directive. The resulting landmark ECJ

184

Hender & Sheridan v. Prospects for People with Learning Disabilities [2008] ET 2902090/2006 & 2901366/ 2008. 185 Thereby ostensibly complying with the ‘genuine occupational requirement’ of the Employment Equality (Religion or Belief) Regulations 2003. 186 [2007] IRLR 476. See, also, Jivraj v. Haswani [2011] IRLR 827. 187 See, for example, Esson v. London Transport Executive, [1975] IRLR 48 and Stedman v. UK, (1997) 23 EHRR CD168. 188 C-13/94, ECR 1-21-43, (1994).

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decision,189 upholding the Tribunal ruling, effectively extended the scope of provisions making sex discrimination illegal to include grounds of “gender reassignment” and has been followed in subsequent cases.190 A decade later, in Hubble v. Brooks,191 a pub owner refused to employ Mr Hubble (and his long-term partner) when he learned at interview that Mr Hubble was gay, despite Mr Hubble and his partner having the requisite experience required for the role. The Tribunal accepted that the owner had a conscientious objection to employing a gay couple in his village pub but held that he had nonetheless directly discriminated against Mr Hubble. To that extent, while both cases were discriminatory, only Hubble disclosed evidence of the belief based personal animus necessary to bring it within the definition of conscientious objection.

4.8.5.2

The Workplace

The principle that any need for special arrangements to accommodate religious beliefs in the workplace are subject to the contractual terms of employment was demonstrated in cases such as Esson v. London Transport Executive.192 The appeal of a Seventh Day Adventist, dismissed after trying to take Saturdays off for religious reasons, was then rejected with the court ruling that it was his duty to reconcile the ‘insurmountable conflict’ between his religious beliefs and his contractual obligations. In Ahmad v. Inner London Education Authority,193 the Court of Appeal held that the right to freedom of thought, conscience and religion established by Article 9 of the ECHR did not entitle an employee to be absent from work for the purpose of religious worship in breach of contract, a decision subsequently upheld by the ECtHR.194 Again, in Stedman v. UK,195 a dismissal for refusal to work on a Sunday was held not to constitute a breach of the right to freedom of religion: the employee’s freedom to resign in effect guaranteed her Article 9 rights; the court found that Article 9 did not require active facilitation of religious beliefs in the workplace. Much the same approach was taken in James v. MSC Cruises Limited

189

C-13/94, [1996] IRLR 347. See, for example, Miss A de Souza E Souza v. Primark Stores Ltd, 2206063/2017 and Hannon v. First Direct Logistics, DEC-E2011-066. 191 Case no.1600381/05, (2005). 192 [1975] IRLR 48. 193 [1978] QB 36, CA. A decision seemingly followed in Safouane & Bouterfas v. Joseph Ltd and Hannah [1996] Case No. 12506/95/LS & 12569/95 when the appeal of 2 Muslims dismissed for praying during breaks was rejected. However, both seem at variance with JH Walker Ltd v. Hussain [1996] IRLR 11 EAT when it was decided that actions taken by an employer causing detriment to Muslims as a class, such as refusal to allow time off for religious holidays, might be held to constitute indirect racial discrimination against those from an ethnic or national origin that is predominantly Muslim. 194 (1982) 4 E.H.R.R. 126. 195 (1997) 23 EHRR CD168. 190

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UK196 when a Seventh Day Adventist who was not prepared to work from sunset on Friday until sunset on Saturday, but had not mentioned this during her job interview, failed in her claim of religious discrimination when the Tribunal found that the business needs outweighed the discriminatory effects on the complainant. Again, in Patrick v. IH Sterile Services Ltd197 the Tribunal considered that the employer could justify interference with the plaintiff’s right to manifest his religious beliefs as its contractual obligation to provide sterile laboratory services to its customers on Sundays was a legitimate aim, and sharing out the obligation to work on Sundays equally across the workforce was a proportionate means of achieving it. These were all cases where employees’ claims to privileges in the workplace, on grounds of conscientious objection to the constraints of generally applicable rules, were negated by contractual terms of employment.

Undue Hardship In Noah v. Sarah Desrosiers (trading as Wedge),198 a Muslim applying for a hairdressing position was held to have suffered indirect discrimination when her employer warned that she would be required to remove her hijab while at work if appointed. The employment tribunal found that there was an onus on the employer to produce evidence that the wearing of the headscarf would have an adverse effect on the business. In the absence of any such evidence, the requirement was found not to be justified. The presence or absence of evidence, however, does not detract from the fact that her objection, being based on her religious beliefs, must be construed as conscientious. When, in Thompson v. Luke Delaney George Stobbart Ltd199 the conscientious objection of a Jehovah’s Witness to working on Sundays in compliance with her beliefs was rejected by the employer, her discrimination claim was upheld: the refusal was not proportionate because there were other employees who could have covered the Sunday shift without difficulty. The proportionate principle was also in play in Mba v. London Borough of Merton200 when the refusal of a request not to work on Sundays was found to be proportionate. As mentioned earlier, it was in the landmark case of Eweida and Others v. United Kingdom201 that the ECtHR signalled the need for a stronger emphasis on employer reasonableness and willingness to accommodate when responding to an employee’s wish to manifest their beliefs in the

196

No. 2203173/05, (April 2006). ET 3300983/11. 198 ET 2201867/2007. 199 [2011] NIFET 00007 11FET. Though, see Cherfi v. G4S Security Services Ltd, [2011] UKEAT 0379 when the refusal of a security guard’s request that his working hours be adjusted to facilitate attendance at a mosque for prayer on Fridays was found to be justified. 200 [2013] EWCA Civ 1562. 201 [2013] ECHR 37. 197

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workplace. By concluding that the applicant’s employer had breached her Article 9 rights by not allowing her to wear a small cross around her neck, the ECtHR seemed to counter the many cases represented by the Stedman ruling and to steer the UK courts towards a more generous approach regarding employees’ discrete expressions of belief.

Sincerity of Belief When the employee is a public official the sincerity of their conscientious objection, on grounds of religion/belief/conscience, will be insufficient to exempt them from their contractual duties. This was clearly demonstrated in a series of cases consolidated and upheld by the ECtHR in the Eweida ruling. In the above mentioned McClintock v. Department of Constitutional Affairs202 and Ladele v. London Borough of Islington203 while there was no doubting the sincerity of the officials views regarding same sex relationships, this was regarded as beside the point: they were both public officials employed to deliver services that the public had a right to access. Similarly, in McFarlane v. Relate Avon Ltd204 (see, further, above at Sect. 4.8.2.3), the court followed its approach in Ladele205 and ruled that while the plaintiff’s conscientious objections were sincere and had resulted in his suffering indirect religious discrimination this was insufficient to outweigh his contractual duties. Again, in Dr David Mackereth v. The Department for Work and Pensions & Anor,206 the sincerity of the doctor’s denial of transgenderism was not in question but nonetheless the Tribunal held that his views could not find protection under the Equality Act. These cases mark an important point of departure from equivalent and contemporary U.S. caselaw.

4.8.6

Commercial Services

SOGI and religious issues have generated considerable contention across a wide range of commercial services and triggered a corresponding reliance upon conscientious objection.

202

[2008] IRLR 29. [2009] EWCA (Civ) 1357 (15 December 2009). 204 [2010] EWCA Civ B1 (29 April 2010). Also, see, R(Johns v. Derb City Council [2011] EWHC 375 (Admin); [2011] 1 FLR 2094. 205 [2009] EWCA Civ 1357, [2010] IRLR 211. 206 [2019] ET 1304602/2018. 203

4.8 Conscientious Objection and Equality: Contemporary Caselaw

4.8.6.1

165

Goods and Services

In Bull v. Hall and Preddy207 the Supreme Court confirmed that the conscientious objection of Christian hotel owners did not justify their refusal to provide a doublebedded room to a same-sex couple but constituted unlawful discrimination. As Lady Hale stressed, in this instance the point of the Equality Act 2010 “was to secure that people of homosexual orientation were treated equally with people of heterosexual orientation by those in the business of supplying goods, facilities and services”.208 The argument that they should not be compelled to run their business in a way which conflicts with their deeply held religious beliefs was dismissed (in marked contrast to the Hobby Lobby ruling in the U.S.). It was considered that very weighty reasons would be required to justify discrimination on grounds of sexual orientation.209 Similarly, in Black and Morgan v. Wilkinson210—among a number of similar cases—the court found that the conscientious objection of the defendant in denying the request of a same sex couple for a double bedroom, who were neither married nor in a civil partnership, was again discriminatory in breach of regulation 4 of the Equality Act (Sexual Orientation) Regulations 2007. As the court noted: “the application of the regulations to the defendant’s bed and breakfast establishment does not prevent her from holding her religious beliefs”. Again, in the same year, the ECtHR found against the EAT when it ruled that Relate, a private company, was entitled to dismiss their employee Mr McFarlane who by refusing to provide counselling to gay couples had breached the company’s non-discrimination policy.211

4.8.6.2

Religious Owners of Commercial Businesses

Gareth Lee v. Ashers Baking Company Ltd, McArthur and McArthur,212 a Northern Ireland case, concerned bakers who were expected not only to provide a service but, in doing so, to express support for a position with which they strongly disagreed. The court at first instance ruled that it was unlawful direct discrimination on grounds of sexual orientation for a bakery owned by two Christians to refuse to bake a cake which had printed on it a picture of ‘Bert and Ernie’ and the caption ‘Support Gay Marriage’. The ruling was upheld by the Northern Ireland Court of Appeal, but subsequently overturned by the UKSC213 which found that there had been no discrimination: neither political nor based on sexual orientation; “the objection 207

[2013] UKSC 73. Bull and Bull v. Hall and Preddy, [2013] UKSC 73, at para. 38. 209 Ibid, at para. 53. 210 [2013] EWCA Civ 820. 211 Eweida and Others v. the United Kingdom, Application Nos. 48420/10 and 3 others, (2013). 212 Neutral Citation No. [2015] NICty 2. 213 Lee v. and Ashers Baking Co Ltd and others, [2018] UKSC 49. 208

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was to being required to promote the message on the cake, the bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics”.214 As Lady Hale explained:215 the Asher’s Bakery could not refuse to provide a cake – or any other of their products – to Mr. Lee because he was a gay man or because he supported gay marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed. They would be entitled to refuse to do that whatever the message conveyed by the icing on the cake – support for living in sin, support for a particular political party, support for a particular religious denomination.

Arguably, this decision is one of considerable significance for conscientious objection. The UKSC had taken note of the fact that the right to freedom of expression, as protected by Article 10 of the ECHR, was in play (in addition to Article 9) and that this included the right not to express an opinion. The bakers were not entitled to refuse their service to gay customers per se but were entitled to refuse to have their service burdened with an expression of support for something— anything—that they objected to on grounds of sincerely held beliefs. In short, they conscientiously objected and were entitled to do so. A different issue is whether such a religious owner of a commercial business should be able to conscientiously object, on grounds of religious belief, to the hiring of staff or to their conduct when employed, if this is non-compliant with the owner’s religious values. It is reasonably clear that while such an owner, with an ethos based on religion or belief, enjoys a certain degree of latitude on such matters it is a good deal less than that granted to their U.S. counterpart by the Hobby Lobby decision.216

4.9

Conclusion

The currently pending private Member’s Bill entitled the Conscientious Objection (Medical Activities) Bill 2017–19 provides evidence, if that were needed, that this subject has become a pressing matter of public concern. The corollary, that it remains pending three years after initial formulation, indicates that the subject is also highly contentious. To some extent the legislative delay is unsurprising. This, the primary common law nation and the one that stamped its Christian culture on the other Part III jurisdictions, is now leading the migration into secularism while also paradoxically retaining the distinction of being the sole such jurisdiction with an ‘established’ Church. It is also the only one that now legally requires religion and religious organisations to provide evidence of public benefit as a condition for acquiring

214

Ibid, at para. 62. Ibid, at para. 55. 216 Burwell v. Hobby Lobby Stores Inc. 215

References

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charitable status and tax exemption privileges. Moreover, the range of beliefs that have acquired that status and exemption in this jurisdiction is unparalleled. In short, this country now has a conflicted relationship with religion/belief which must contribute to its difficulty in framing a coherent set of legislative provisions with a specific and contained application to “medical actvities” such as would expedite the passage of the above Bill.

References Deer B (2020) The doctor who fooled the world: Andrew Wakefield’s war on vaccines. Scribe, UK Edge PW (2012) Determining religion in English courts. Oxford Journal of Law and Religion, OUP, Jan Hickman T (2020) The use and misuse of guidance during the UK’s coronavirus lockdown. SSRN, p3 Moon G (2003) Complying with its international human rights obligations: the United Kingdom and Article 26 of the International Covenant on Civil and Political Rights. Eur Hum Rights Law Rev 8(3):283–307 Sandberg R, Doe N (2007) Religious exemptions in discrimination law. Camb Law J 66(2) Trigg R (2012) Equality, freedom and religion. OUP, Oxford, p 134 Weller P (2005) Time for a change: reconfiguring religion, state and society. T and T Clark, London

Chapter 5

Ireland

Abstract This chapter begins with the historical background and considers the social context that shaped the current role for conscientious objection in Ireland. It identifies and examines the relevant principles, policy and law before tracing the related policy developments and outlining the current international and domestic legislative framework, noting the ratification of relevant international treaties, conventions or protocols and identifying the main judicial and regulatory bodies. It then examines the contemporary functioning of conscientious objection: firstly, as it intersects with the fundamental freedoms of expression, association/assembly and religion; and secondly as it relates to a sequence of distinct themes (identified in previous chapters) as they are impacted by equality and non-discrimination law. In so doing, the chapter identifies and assesses any significant trends and governing principles.

5.1

Introduction

For most of its relatively short life as an independent State, Ireland has been home for a population that cohered around a culture dominated by the Catholic Church. The rites and ceremonies of Catholicism, its beliefs and values protected by the Constitution and reflected in the body of family law, provided a unifying bond for a society that was in the process of becoming less poverty stricken and agriculturally oriented, and more urban. There was little scope for conscientious objection in such a monocultural society; those who were frustrated by the constraints simply emigrated. In recent decades the pace and scale of social change has been accompanied, whether as cause or effect, by many opportunities for objectors—conscientious and otherwise— who have culmulatively made a significant contribution to modernising Irish society. Following the pattern established in the preceding jurisdiction chapters, this one begins with the historical background and considers the social context that shaped the current role for conscientious objection in Ireland. It identifies and examines the relevant principles, policy and law before tracing the related policy developments and outlining the current international and domestic legislative framework, noting the ratification of relevant international treaties, conventions or protocols and © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_5

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identifying the main judicial and regulatory bodies. It then examines the contemporary functioning of conscientious objection: firstly, as it intersects with the fundamental freedoms of expression, association/assembly and religion; and secondly as it relates to a sequence of distinct themes (identified in previous chapters) as they are impacted by equality and non-discrimination law. In so doing, the chapter identifies and assesses any significant trends and governing principles.

5.2

Principles, Doctrines and Definitions

Ireland in the twenty-first century is no longer the homogenous Catholic society it once was. It remained relatively culturally intact until the effects of an abrupt change from emigration to immigration, during the closing decades of the twentieth century, transformed it from a mono-cultural white Catholic and largely rural society, with the highest level of regular church attendance in Europe, into a much more multicultural, urbanised and multi-faith entity. There has been, however, a distinct time lag as regards implementing the changes needed to synchronise emerging social trends with related laws and institutions. A period of misalignment conducive to frustration, tension and conscientious objections.

5.2.1

Religion, Belief and Matters of Conscience

The considerable cultural change experienced by Ireland in recent decades, particularly as regards the traditional congruity between citizenship and Catholicism, is now being reflected in the range of new legislation relating to the family, marriage and relationships etc. As yet this has been unaccompanied by legislative provisions or judicial rulings broadening the interpretation of ‘religion’, ‘belief’ or ‘matters of conscience’ to match the religious pluralism attained by Irish society in the second decade of the twenty-first century.

5.2.1.1

Traditional Religions

The Constitution makes no express reference to faiths that do not profess belief in a god, nor to polytheistic religions, nor to beliefs of a wider philosophical nature such as humanism. Statute law also provides no definition of what constitutes a ‘religion’ or ‘belief’. Effectively, then, it has fallen to the judiciary to interpret how these terms may be construed in law. Barrington J ventured an explanation in Corway v. Independent Newspapers (Ireland) Ltd:1

1

[1999] 4 IR 484.

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the State acknowledges that the homage of public worship is due to Almighty God. It promises to hold his name in reverence and to respect and honour religion. At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists.

This interpretation was endorsed by Hogan J in Temple Street2 when he noted that the State is required to give parity of recognition to Christian and non-Christian religions. However, given the fact that the Constitution leans heavily towards Christianity—particularly Roman Catholicism—there remains some doubt as to the reality of that parity.3 A distinctive characteristic of religion in this jurisdiction has been and remains an emphasis on the importance of private piety. Its significance was recognised by Gavan Duffy J in Maguire v. Attorney General4 and in re Howley.5

5.2.1.2

Contemporary Belief Systems and Matters of Conscience

That a legal definition of religion could be satisfied by a system of belief not involving faith in a god has never been unequivocally affirmed by the judiciary, and the legislators have chosen not to avail of the opportunity to break with tradition by specifically extending recognition to philosophical beliefs. Attempts to broaden recognition to include recognition for humanism, for example, have failed.

Legitimacy and Cogency A religion will not gain judicial recognition as such unless its adherents at least profess belief in a “Supreme Being”. In addition, members of a religion must practice a common form of worship and have a shared faith that draws from the same body of beliefs. The legitimacy and cogency of beliefs that purport to meet the definition of ‘religious’ are matters to be determined “in accordance with the laws, canons, ordinances and tenets of the religion concerned”.6 The necessity for doctrinal evidence to substantiate religiousity was re-affirmed in McNally & Anor v. Ireland & Ors.7 The resulting inference that conscientious objection will be tied

2

Temple Street v. D. & Anor [2011] IEHC 1. Though, as Gerard Whyte points out “now note Article 44.2.3” (note to author, 12.07.21). 4 [1943] IR 238. 5 [1940] IR 109 where Gavan Duffy J. stated: The assumption that the Irish public find no edification in cloistered lives, devoted purely to spiritual ends, postulates a close assimilation of the Irish outlook to the English, not obviously warranted by the traditions and mores of the Irish people. 6 The Charities Act 2009, s.3(6), reiterating the wording of the equivalent provision in s.45 of the 1961 Act. 7 [2009] IEHC 573. 3

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to an objector’s religious belief, to the exclusion of other forms of belief, is reinforced by the absence of any reference to non-religious beliefs in the Employment Equality Acts 1998–2015.

5.2.2

State Neutrality

While the Constitution declares that the State may not ‘endow’ any religion (Article 44.2.2), nor discriminate on religious grounds (Article 44.2.3), it also explicitly asserts the Christian values of the State—derived specifically from Catholic teachings—in the Preamble and elsewhere in various Articles.8 Additionally, In the Matter of Article 26 of the Constitution and In the Matter of the Employment Equality Bill, 19969 the Supreme Court concluded that it was permissible, on a constitutional basis, to make distinctions on grounds of religion in certain restricted circumstances when necessary to “give life and reality to the guarantee of free profession and practice of religion”. In practice the policy of providing State funding in support of religion has been one aimed not directly at assisting religious purposes but towards assisting Roman Catholic organisations, most usually in their role as service providers in health care and education. The long established government practice of funding staff or equipment, mainly in Catholic but also in some Protestant public service facilities, is set to continue for the forseeable future.

5.2.2.1

Preferencing Christianity and the Christian Cultural Heritage

The Preamble to, and several Articles of, the Constitution are unequivocal in declaring support for the beliefs and values of Christianity in general and Catholicism in particular. Article 44.1 declares “the State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion”. Constitutional preferencing of Christianity is also apparent in the requirement that the President, judges and members of the Council of State swear a religious oath before taking office (Articles 12, 31, 34). Other religious references include: all authority is held to come from ‘the Most Holy Trinity’; obligations are owed to ‘our divine Lord Jesus Christ’; and the State is urged to hold the name of God in reverence and to honour and respect religion. While not mentioning Catholicism, such references clearly discriminate in favour of religion, specifically Christianity. This is reinforced by the practice of commencing daily parliamentary business with a

8 9

In Norris v. Attorney General [1984] IR 36. [1997] 2 IR 321 at p. 359.

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prayer calling upon “Christ our Lord” for guidance, and by the daily transmission of the Angelus by Raidió Teilifís Éireann, the State broadcasting company. The Constitution commits the State to upholding the nation’s declared religious/ cultural identity. As noted by O’Higgins CJ in Norris,10 the long established Catholic cultural identity gave the Irish people a “deeply religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs.” This protective approach to the traditional culture was apparent in Campaign to Separate Church and State11 which—although largely about the State remuneration of religious chaplains—also concerned the presence of Catholic icons or artwork in classrooms. Barrington J then ruled that publicly funded schools are not obliged “to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion”. Again, in O’Shiel v. Minister for Education,12 Laffoy J upheld a requirement that publicly funded schools give preference to employing teachers qualified to teach Irish to a reasonable standard. However, this is counterbalanced to an extent by the observation of Hogan J that:13 Article 44.2.1 protects not only the traditional and popular religions and religious denominations - such as, for example, Roman Catholicism, the Church of Ireland and the Presbyterian Church - but perhaps just as importantly, it provides a vital safeguard for minority religions and religious denominations whose tenets are regarded by many as unconventional.

5.2.2.2

The Religious Exemption

Under the Equal Status Acts 2000–2018, s.7(2) and s.7(3)(c), schools have been able to filter pupil admission in accordance with denominational loyalties; a discretion now constrained by the Education (Admission to Schools) Act 2018 (see, further, below). Similarly, under the Employment Equality Acts 1998–2015, s.37(1), a religious, medical or educational institution established for a religious purpose has been able to discriminate where it is reasonable to do so in order to maintain the ‘religious ethos’ of the institution or is reasonably necessary to avoid undermining that ethos.14 Unfortunately, there is no definition of ‘ethos’ though it is reasonably certain that a religious preference may be legitimately exercised in respect of employees, job applicants or pupil admissions, including reserving quotas of places available in certain teaching and nursing institutions, and will include disciplinary

10

Norris v. Attorney General [1984] IR 36, at p. 64. [1998] 3 IR 321. 12 [1999] 2 IR 321, [1999] 2 ILRM 241. 13 See, Temple Street v. D. & Anor [2011] IEHC 1, per Hogan J at para. 27. 14 Note, s.37 was amended in 2015 and now significantly restricts the ability of these institutions to discriminate on religious grounds in order to protect their religious ethos (author acknowledges advice of Eoin Daly and Gerard Whyte on this matter (notes to author, 26.03.17 and 12.07.21). 11

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action against employees who breach the established standards and traditions of a religious institution15 (see, further, below at Sect. 8.4.1). In Quinn’s Supermarket Ltd v. Attorney General16 and in Re Article 26 and the Employment Equality Bill 1996,17 the Supreme Court confirmed that a religious action may be exempt from general laws if a failure to provide an exemption would restrict or prevent the free profession and practice of religion. It is clear, however, that not every “distinction necessary to achieve this overriding objective will be valid”.18 In the latter case, the Supreme Court ruled that it was constitutionally permissible to discriminate on grounds of religious profession, belief or status if this is necessary to “give life and reality” to the constitutional guarantee of freedom of religion.19 In recent years, the religious exemption has been considerably diluted.20

5.3

Conscientious Objection and Exemption: An Evolving Policy

Until the ending of British rule with the creation of the Irish Free State in 1922, the laws governing civic responsibilitiy in Ireland and related grounds for exemption— including conscientious objection—were as determined in England. Following independence, particularly after the 1937 Constitution laid the foundations for an autonomous legal system, those laws and associated grounds for exemption reflected the distinctly Catholic ethos that for several generations thereafter permeated Irish society.

5.3.1

Initial Exemptions

Legal recognition given to conscientious objection in the three initial contexts— vaccinations, oaths and military service—unfolded somewhat differently in Ireland than in England. An outbreak of smallpox in 1840 led to the first Vaccination Act being introduced in Ireland but it was poorly administered which resulted in compulsory vaccination being legislatively mandated in 1863, followed by many convictions for

15

Note the Equality (Miscellaneous Provisions) Act 2015, s.11. [1972] IR 1. 17 [1997] 2 IR 321 at p. 358. 18 See, Casey (2000), p. 698. 19 The 1996 Bill was declared unconstitutional on other grounds but s.37(1) of the 1998 Act, its replacement, virtually replicates its predecessor. See, also, Greally v. Minister for Education (No 2) [1999] 1 IR 1, [1999] 2 ILRM 296. 20 Author acknowledges advice from Judy Walsh on this point (note to author: 04.06.19). 16

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non-compliance. The Vaccination Act (Ireland) Amendment Bill, April 7th, 1879 extended to Ireland the application of legislation already in force in England. The parliamentary debate, during the course of the second reading of the Bill,21 is interesting as Hopwood MP draws attention to an issue that, then as now, denigrates the standing of the anti-vaxxers: he notes that such rejection “was considered to be an offence against the whole profession and science of medicine”. Nonetheless, compliance would seem to have been greater in Ireland than in England resulting in lower death rates and fewer public protests by conscientious objectors.22 The importance attached to oaths, as public declarations of intent to honour a higher authority, was plainly evident in the opening words of the Constitution—‘In the name of the Most Holy Trinity. . .’ This practice has a considerable history, probably reaching back to the Brehon laws;23 subsequently, an oath of allegiance to the English crown was a requirement of the Irish Act of Supremacy for appointment to public office from the time of King Henry VIII until Ireland achieved independence. As in England, the difficulty caused by excluding atheists and agnostics from giving evidence was compounded by the refusal of Quakers and others to swear oaths on the grounds that such an act was blasphemous.24 The Common Law Procedure Amendment Act (Ireland), 1856,75 granted the right to affirm in civil proceedings to all persons who refused or were unwilling from alleged conscientious motives to be sworn, whether in relation to viva voce evidence or evidence by affidavit or deposition, and in 1861 this more general provision was extended to all criminal proceedings.76 However, the custom of requiring a sworn oath has proved tenacious, so much so as to cause the UN CRC in 2014 to express its concern at the slow pace of progress in amending the provisions of the Constitution that oblige individuals wishing to take up senior public office positions, such as President, members of the Council of State and members of the judiciary, to take religious oaths. It urged that concrete steps be taken to amend articles 12, 31 and 34 of the Constitution that require religious oaths to take up senior public office positions. Finally, conscientious objection to bearing arms is a complete misnomer in Ireland, as this country has never needed to resort to conscription.

5.3.1.1

Legal Recognition of ‘Conscience’

The Irish Constitution, in keeping with its Canadian counterpart but unlike those of most other nations, explicitly references ‘conscience’ as a matter of singular

21 See, Hansard, HC Deb 07 April 1879 vol 245 cc502-13, at: https://api.parliament.uk/historichansard/commons/1879/apr/07/bill-90-second-reading. 22 See, Wallace (2014), pp. 119–216. 23 See, further, Ginnell, L., ‘Oaths in Ancient Ireland’, in The Brehon Laws: A Legal Handbook, at: https://www.libraryireland.com/Brehon-Laws/Contents.php. 24 See, further, the Law Reform Commission (Ireland), Report on Oaths and Affirmations, (1990), at: https://www.lawreform.ie/_fileupload/Reports/rOaths.htm.

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importance. Article 44.2.1 provides a guarantee that all citizens are entitled to ‘freedom of conscience . . . subject to public order and morality’. Nearly half a century ago, Fitzgerald C.J. sought to tie ‘conscience’ to ‘religion’:25 What the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one’s conscience and, in the context of the Article, that means contrary to one’s conscience as far as the exercise, practice or profession of religion is concerned.

Although clearly separated from the freedom of religion clause, implying recognition of ‘conscience’ as having a status independent and distinct from ‘religion’, any associated jurisprudence seemed to adopt the above approach by either fusing the two or treating the former as a nominal adjunct to the latter. In recent years, however, judicial notice has been taken of a range of matters of conscience and systems of belief that have emerged to stand alongside and independent of religion; in particular this was elucidated in AM v. Refugee Appeals Tribunal26 (see, further, below at Sect. 8.4.2). The efforts of the Chief Justice to stem the tide and ensure the assimilation of ‘conscience’ into ‘religion’ are destined to fail as Ireland becomes increasingly multicultural and diversified in its accommodation of those adhering to many religions and to none.

5.3.1.2

An Aspect of Citizenship

Until relatively recently, citizenship in an independent Ireland has been wrapped in a loyalty not just to the republic but also to traditional Christian values—with an emphasis on Catholicism—as firmly and repeatedly articulated in the Constitution. It would seem that this new nation, with its unusually homogenous culture coalescing around religious beliefs, had a very different response to the same three contexts for conscientious objection than that which had evolved in the neighbouring island: much less resistance to compulsory vaccinations; little protest regarding oaths or pressure for affirmation to be substituted; and no need to challenge a requirement to bear arms on behalf of the country.

5.3.2

Abortion, Contraception and Adoption: A Context for Developing Policy

The policy relating to these matters was initially formed in the the mid-decades of the twentieth century when the State shamefully colluded with the Church to isolate

25 26

[1974] I.R. 284. [2014] IEHC 388 at para.32.

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single mothers27 as a threat to the institutions of marriage and the family.28 An ‘illegitimate’ child was treated by the State as sui juris (outside the law) and by the Church as ‘lost to God’, a formula resulting in immense suffering to untold numbers of unmarried mothers and their children which included a proliferation of private nursing homes in which an estimated 9000 infants died, to be buried in unmarked graves,29 and from which many others were smuggled overseas to Catholic families.30 The Church/State prohibition of abortion was unquetionably a significant factor in shaping these events. Abortion for Irish women has long been problematic. Prohibited initially under the Offences Against the Person Act 1861 and Article 40.3.3 of the Constitution, abortion was subsequently banned by the Protection of Life During Pregnancy Act 2013 (unless resulting from medical intervention to save the life of the woman). In recent years its availability was the subject of considerable national31 and international32 controversy before becoming legalised with the introduction of the Health (Regulation of Termination of Pregnancy) Act 2018.33 A catalyst for change in the cultural context, paving the way to the referendum and legalisation of abortion, was the tragic death of Savita Halappanavar at the University Hospital in Galway in 2012, reportedly attributed to the conscientious objection of the medical professionals involved to accede to her repeated requests for an abortion on the grounds that Ireland was a Catholic country.34 This was a time when legal access to contraceptives was also fraught. The early case of McGee v. Attorney General,35 concerned a married couple's right of access to contraceptives. In relation to the plaintiff’s wish to import artificial contraceptives for her personal use, the Supreme Court held that the ‘freedom of conscience’ provision of Article 44.2.1 did not encompass freedom of social conscience, as opposed to freedom of religious conscience. The Health (Family Planning) Act 1980 extended access to contraceptives on prescription as sold by a

27

In 1967 some 96.9% of non-marital births resulted in adoption. See, Mother and Baby Homes Commission of Investigation, Final Report, (2020), at: http://www. mbhcoi.ie/mbh.nsf/page/LPRN-BX7L4E15252212-en/$File/Final%20Report.pdf. 29 See, The Irish Post, and reports that the bodies of some 800 babies and infants were found in a burial pit at one mother and baby home in Tuam, at: http://www.irishpost.co.uk/news/philomenajournalist-lands-new-bbc-series-irelands-lost-babies. 30 See, Milotte (2014). 31 See: Attorney General v. X [1992] IESC 1; [1992] 1 IR 1 which established the right of Irish women to an abortion if their life was at risk because of pregnancy, including the risk of suicide; and Re Article 26 and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill, 1995, [1995] 1 IR 1. 32 See, A, B and C v. Ireland, Application No. 25579/05, (2010). This judgment provides an excellent history of developments in Irish law as it relates to abortion. 33 Legislation made possible by the 36th constitutional amendment, approved by national referendum in May 2018, replacing the 8th Amendment. 34 See, further, at: https://www.bbc.co.uk/news/uk-northern-ireland-20321741. 35 [1974] IR 284, 298. 28

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registered pharmacist. In 1985 legislation was introduced to make contraceptives available without prescriptions at pharmacies to anyone over the age of 18; despite the conscientious objections of many, including the Dublin archbishop who claimed the legislation would send Ireland down a “slippery slope of moral degradation”.36 Until the latter half of the twentieth century, adoption was the only legally and socially permissible means of addressing unwanted pregnancy. Religion and religious organisations played a dominant role in the care and adoption of children in Ireland. The adoption process in particular rested almost wholly on denominational organisations: most of which were attached to the Catholic Church; though a few were exclusively Protestant. Their collective contribution to adoption practice may be judged from the simple fact that the majority of all orders granted have been in respect of placements made by them. However, it was a role with a troubled history, one in which the rights of mothers and their children were often routinely violated, involving the disgrace of the ‘Magdalene laundries’37 and the anguish of countless mothers who, as depicted in the film ‘Philomena’,38 were forced to relinquish babies that were then ‘trafficked’ for adoption overseas—at least 2000 going to Catholic adopters in the U.S.39 Religion systemically permeated adoption practice in the early years of its existence as a statutory process. It was denominationally structured; where denominational matching could not be achieved on a domestic basis (usually due to excessive numbers of babies born to Catholic unmarried mothers) children were sent overseas for adoption rather than placed with married couples of a different religion. Not until M.v. An Bord Uchtalla,40 which upheld the conscientious objection of a religiously mixed marriage couple to being excluded as adopters on religious grounds, did the religious dimension begin to fade as a determinant of adoption eligibility. Given the extent of control exercised in that era by the twin authorities of Church and State, with the acquiesence or ignorance of compliant religious citizens—a constitutional “ideological faultline” upholding the dominant position of 36 See, further, at: https://www.history.com/this-day-in-history/ireland-allows-sale-ofcontraceptives. 37 In June 2013, the Irish government offered a public apology—and agreed to pay €34.5 million in compensation—for the years of unpaid labour and public shame endured by the estimated 770 survivors of more than 10,000 young mothers who lived in a dozen such facilities from the 1920s to 1996. 38 See, the 2013 Oscar-nominated film Philomena, about an Irish mother forced to give up her son for adoption. Ms Philomena Lee, a teenager in 1952, was consigned to the care of Catholic nuns in Ireland after she became pregnant and, like an estimated 60,000 other young Irish women, had her baby removed and adopted and was thereafter required to repent for the shame of having had an outof-wedlock child. 39 Note that in February 2014 a report by the U.N. Committee on the Rights of the Child urged the Vatican to conduct an investigation into the Magdalene laundries. Given that at least one priest facilitating the U.S. adoptions of Irish children was a paedophile, the term ‘trafficking’ is not inappropriate. 40 [1975] I.R. 81.

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Catholicism41—it is unsurprising that such few conscientious objections as there may have been to Church dominance of adoption and foster care were stifled or disregarded. This would be the case with any ‘closed’ and relatively homogeneous society.

5.3.3

Same Sex Relationships: Evolving Contemporary Policy

Following hard on the heels of Dudgeon,42 the ruling in Norris v. Ireland43 was similarly grounded on the right to privacy in Article 8 of the ECHR and had the same effect of establishing that sexual orientation and same sex relationships should not be matters amenable to State intervention. The Norris litigation began in the Irish courts in 1977 with decisions that a right to privacy was not violated either by the Offences against the Person Act 1861 nor by the Criminal Law Amendment Act 1885 (criminalising “buggery” and “gross indecency” respectively). Chief Justice O’Higgins rejected the plaintiff’s conscientious objection to religious values that had maintained the criminalisation of homosexuality and he defended “laws which had existed for hundreds of years prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful”.44 When the matter reached the ECtHR, the court found that the legislation failed the tests of being necessary in a democratic society and of being proportionate to a legitimate aim; it imposed harm upon certain people that far outweighed any potential social benefit. Nonetheless, homosexuality continued to be a criminal offence in Ireland until 1993; a significant constraint to social acceptance of same sex relationships. The Zappone case45 in 2006 could be construed as one of conscientious objection. This concerned a lesbian couple who had lived together for 23 years, had married in Canada, and had moved to reside in Ireland where, on being refused tax relief on the basis of their legally established marital status, they claimed discrimination in breach of their constitutional rights under Articles 40, 41, and 43 of the Constitution. Further, they argued that the same refusal amounted to discrimination based on sexual orientation, contrary to Articles 8, 12 and 14 of the ECHR. The court found that the Constitution’s definition of marriage, as a union between a man and a woman, had repeatedly been reaffirmed by the Irish courts and in particular Article 41 pledged the State “to guard with special care the institution of marriage”. Given that the plaintiffs challenge was directed at the Constitution’s religiously based interpretation of marriage, which they argued did not accommodate their belief

41

See, Whyte (2010). Dudgeon v. United Kingdom, Application No. 7525/76, [1981] 4 EHRR 149, [1981] ECHR 5. 43 Norris v. Ireland, Application No. 10581/83, (1988). 44 David Norris v. The Attorney General, [1984] IR 36. 45 Zappone & Gilligan v. Revenue Commissioners & Ors, op cit. 42

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that it should be gender neutral, it was therefore essentially driven by their conscientious objection. This case did, however, generate a momentum for change,46 led by bodies such as Marriage Equality and the Irish Council for Civil Liberties,47 which in time resulted in the legitimation of same sex relationships.48 In August 2015, the President of Ireland approved legislative provision for same-sex marriage which was duly signed into law as the Thirty-fourth Amendment of the Constitution.49 Article 41.4 now provides that “marriage may be contracted in accordance with law by two persons without distinction as to their sex”.50 Acceptance that ‘distinction as to sex’ could accommodate trans persons was a further if logical step. Arguably the plaintiff in Foy v. An t-Ard Chláraitheoir51 was similarly conscientiously objecting when she challenged the refusal of the Registrar to amend her birth certificate to accord with her male-to-female gender reassignment: the Registration of Births and Deaths (Ireland) Act 1863 being compiled in accordance with a religious interpretation of ‘marriage’ that denied her a chosen gender identity status. In rejecting her claim the court was heavily influenced by the fact that, as her marriage to a female remained extant, its validity would be nullified by a legal change to her gender. McKechnie J ruled that Irish law was deficient and in breach of international human rights as it failed to provide legal recognition for transgender people. This ruling resulted in the Gender Recognition Act 2015 which now provides legal recognition for the acquired gender of trans persons and should extend the ambit of legal prohibition from discrimination on sexual grounds.

5.3.4

Medical Advancement: Contiguous Policy Development

Advances in medicine have had a hugely beneficial impact upon the range of treatment options in this jurisdiction, as in others, but here they have occurred in a social context where the traditional values of Catholicism continue to be balanced against those of secularists in the hospitals, clinics and social care settings where relevant services are dispensed. The tension between the two is conducive to outbreaks of conscientious objection.

46

Though, subsequently, a resurgence of conservatism saw legislation introduced to criminalise prostitution; the Criminal Justice (Sexual Offences) Act 2017. 47 See, the Working Group on Domestic Partnership, Options Paper on Cohabiting Couples (the Colley report), (2006), at: http://www.justice.ie/en/JELR/OptionsPaper.pdf/Files/OptionsPaper. pdf. 48 See: Casey (2018), pp. 217–236; and Ryan (2013), pp. 101–126. 49 Following an overwhelming majority favouring gay marriage in the May 2015 national referendum. 50 Until amended following the decision in Zappone & Gilligan v. Revenue Commissioners & Ors [2006] IEHC 404. 51 [2002] IEHC 116.

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The core belief of Catholicism that all life—from inception—is sacred was always going to be an inhibiting factor in relation to genetic engineering and embryo research etc in Ireland. The production of GM foods, for example, has never been facilitated. That belief has also caused embryos to be treated as having the same moral and legal status as that of the newborn child. Indeed, it resulted in an embryo research bill being dropped in 2008 and two other bills, including the Human Tissues Bill 2008, similarly never becoming law. As a consequence of conscientious objection, Ireland continues to be one of the few countries in Europe that has no regulatory framework for stem cell research. This core belief proved equally obstructive in the debate concerning the issue of medically assisted death. There have been continuous protests from doctors, organisations such as the ProLife Campaign and others to proposed legislation permitting medically assisted death.52 As of autumn 2021, the conscientious objections of the Catholic Church, many government ministers and some medical practitioners have combined to block progress of the Dying with Dignity Bill.

5.4

From Policy to Legislation

The transition from the twentieth to the twenty-first century saw Ireland largely transformed into a not untypical modern, diversified, multicultural nation. Within two or three decades it had left behind its traditional identity as an agriculturally orientated, religiously dominated and patriarchical society to become an internationally engaged and competitive European State, a development that owed a good deal to its EU membership. There remained, however, a legislative and institutional lag; the framework supporting social mores now fast becoming redundant had to be re-engineered to fit the purposes of a more cosmopolitan Irish society.

5.4.1

Universal Legislative Constraints

The Constitution is and has been the umbrella under which the institutions, the legal system and the social mores of the nation have sheltered since 1937. The number and rate of amendments to it reflect the corresponding pace of social change: in the first 50 years, until 1987, there had been 10 amendments; by 1999, twelve years later, a further 10; but, already so far, there has been a total of 20 in the twenty-first century. Each amendment has freed the legislature to create new laws, adjust old ones and realign institutional functions to better serve the purposes of a rapidly evolving society.

52

See, for example, https://www.irishexaminer.com/news/arid-40059278.html.

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Laws That Unfairly Burden a Minority

As might be expected in a religiously divided society with a dominant Catholic weighting, the protests claiming to be unfairly burdened by laws largely formulated by and for that majority have tended to come from the minority religions and secularists. The law has been very largely governed by constitutionally entrenched Catholic precepts with the result that, perhaps for longer than most other developed nations, it perpetuated a symbiotic State/Church approach that—among other constraints—punished same sex relationships, abjured abortion and disallowed same sex adoption applicants. The Protestant population, in particular, has had good reason to feel constrained by laws and practices that have made it difficult to access schools and health care services not defined and delivered in accordance with Catholic orthodoxy. The seminal case of Ryan v. Attorney General53 was a milestone in Irish jurisprudence for many reasons but in the current global pandemic it carries a special resonance, and not only for Ireland. The issue was staightforward: government had authorised the introduction of fluoride into the nation’s drinking water, for reasons of dental health; but not everyone was in agreement. The plaintiff, a member of a voluntary association strongly opposed to the legislation, objected to being forced to accept such treated water. She argued that the introduction of fluoride into the public water supply system required her to accept a form of treatment without her consent and as such constituted an infringement of her personal rights and those of her family as guaranteed under Article 40.3 paras 1 and 2. This conflict of interests pitched the State, as guardian of the common good, against one individual seeking to prevent the entire nation from having the benefit of fluoridation and claiming constitutional protection for ‘bodily integrity’ and for the inalienable rights of parents and family as grounds for doing so. The Supreme Court, having heard a considerable body of evidence for and against fluoridation, concluded that the scheme did not violate ‘bodily integrity’, presented no risk to the population and every possibility of alleviating the health problems caused by a substantiated high prevalence of caries in the teeth of the nation’s children.54 In relation to the latter, the court found that “the fact that as a disease it is not infectious or contagious, or, apparently, otherwise communicable to other persons is immaterial . . . it constitutes the type of danger from which the State has not only the right but the duty to protect its citizens”.55 It further found that the legislation did not authorise any intervention that could be said to constitute a State violation of the family nor did it undermine the constitutionally protected right of parents to provide for the education of their children as the fluoridation of water was a process of nurture rather than of education. In summary, Ó Dálaigh CJ was of the view that “there is nothing in the Constitution which recognises the right of a parent 53

(1965) IR 294. Ibid, at paras 25–33. 55 Ibid, at paras 30–31. 54

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to refuse to allow the provision of measures designed to secure the health of his child when the method of avoiding injury is one which is not fraught with danger to the child and is within the procurement of the parents”. A view which now seems prescient as parents and families in Ireland, as elsewhere, face the prospect of State mandated universal vaccination programmes and other compulsory measures designed to protect the health of all if at the price of the objections—conscientious or otherwise—of a few. Quinn’s Supermarket Limited v. Attorney General,56 illustrates the reverse of the above proposition: a 1948 Ministerial order restricted the hours of opening for all meat shops in Dublin but specifically excluded the small minority that sold kosher meat. The aggrieved plaintiff company objected, perhaps conscientiously but certainly commercially, on behalf of the majority, complaining that the restriction amounted, in effect, to religious discrimination. Walsh J held the kosher exemption to be valid, though the offending Ministerial order was struck down on other grounds.

5.4.1.2

Criminal Law Constraints

Tradtionally, the criminal law has leaned in favour of policing religious values, as evidenced in the delay in decriminalising abortion and homosexuality. The Director of Public Prosecutor v. Draper57 provided an early example of the constraints imposed on the right to express conscientious objection as provided for under Article 44.2.1. The Court of Criminal Appeal then dismissed the appeal of a man convicted of malicious damage to religious statues. McCarthy J found that while the appellant may have sincerely believed that he had been sent by God to destroy ‘craven images’, nonetheless any exercise of the conscience clause in Article 44.2.1 was conditional upon actions being compliant with the criminal law.58

Covid-19 Pandemic Constraints From March 2020 a wide range of emergency restrictions was rapidly introduced in response to the Covid-19 pandemic. Within a year this had grown to comprise four statutes and 67 sets of regulations. The scale of this legislative and regulatory intervention was such to attract the comment in a recent TCD report that “Covid19 is more than a public health crisis. It is arguably the most significant set of human rights and equality challenges Ireland has ever faced”.59

56

[1972] IR 1. Irish Times, 24 March 1988. 58 See, further, Whyte (1997), pp. 725–746. 59 Casey et al. (2021), p. v. 57

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The above mentioned report criticises the State for repeatedly blurring the boundary between legal requirements and public health guidance, thereby generating widespread confusion about the extent of people’s legal obligations. It also draws attention to the restrictions that have disproportionately affected vulnerable and disadvantaged groups such as the disabled and the elderly.

5.4.2

Contemporary Government Initiatives

In recent years the government has progressed a considerable legislative programme to adjust the legal framework in accordance with emerging social mores. Some of the more significant developments have been: the Education (Admission to Schools) Act 2018, to remove primary school discretion regarding religion as criteria for admission; the Health (Regulation of Termination of Pregnancy) Act 2018 which has finally made abortion legally available in Irish hospitals; the Children and Family Relationship (Amendment) Act 2018 now provides for donor assisted human reproduction; the Gender Recognition Act of 2015 is scheduled for amendment by the Gender Recognition (Amendment) Bill 2017 to consolidate the legal status of non-binary persons; and the Dying with Dignity Bill 2020 is intended to introduce medically assisted death in specified circumstances. All of these have attracted conscientious objections, mainly from the Catholic Church, its adherents and related organisations. All will undoubtedly continue to provide similar opportunities for the foreseeable future.

5.5

Legislative Framework: International and Domestic

The Republic of Ireland has a domestic legal framework governed by a Constitution—Bunreacht na hÉireann—but, as a wholly committed member of the EU, that framework is firmly aligned with European treaties, conventions, protocols and directives. Article 29.4.6 of the Constitution makes express provision for European Union law to prevail over Irish domestic law, where the two are in conflict, but only to the extent that such EU law is “necessitated” by Ireland’s membership.

5.5.1

International Legislation

The main constituent parts of this framework are as in England and Wales. Having become a signatory State to all major international treaties, conventions and protocols, Ireland is and will continue to be very much part of Europe. However, although Ireland is a party to the ICCPR, ICESR, and other UN treaties, it has not incorporated these treaties into national law (see, further, Sect. 3.2).

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The European Convention on Human Rights (ECHR)

Article 9 providing for the right to freedom of thought, conscience and religion has a direct bearing upon Irish domestic law and is supported by Articles 8, 12 and 14 which govern the right to non-discrimination (see, further, Sect. 3.2.2).

5.5.1.2

The International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is of increasing importance in promoting compliance with human rights in Ireland as elsewhere. While Articles 2 and 19 are significant, of particular relevance for present purposes are the equality and non-discrimination requirements of Article 26. The Covenant also provides authority for the UN Human Rights Committee, which adjudicates on complaints arising under its provisions, and for the Universal Periodic Review Process under which a review of Ireland’s progress in achieving human rights standards is conducted every four years (see, further, Sect. 3. 2.3).

5.5.2

The Constitution and Domestic Legislation

Constitutional authority and principles are augmented by a not untypical range of equality and non-discrimination legislation.

5.5.2.1

The Constitution

Bunreacht na hÉireann, the Irish Constitution, was enacted by the People following a plebiscite on 1 July 1937 and then endorsed by parliament—the Oireachtas. It continues to provide the governing authority for domestic law and its contemporary relevance to developments in Irish society is enhanced through an ongoing process of IESC explication and periodic amendments each preceded by a national referendum. Articles 40-44 of the Constitution specifically provide protection for fundamental rights, including freedom of religion and belief. Article 40.1. states: All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

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This constitutional equality assurance was interpreted by Henchy J, in Dillane v. Ireland,60 as limited—as securing formal, as opposed to substantive equality:61 When the State. . . makes a discrimination in favour of, or against, a person or category of persons, on the express or implied grounds of a difference of social function the courts will not condemn such discrimination as being in breach of Article 40.1 if it is not arbitrary, capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of.

Shortly afterwards, O’Higgins CJ in Norris62 acknowledged that the preferential State treatment of religion could be seen as being among such limitations.

5.5.2.2

The Health (Regulation of Termination of Pregnancy) Act 2018

This legislation, with effect from January 2019, requires abortion services to be made available in all hospitals.

5.5.2.3

The Education (Admission to Schools) Act 2018

Primary school discretion to use religion as criteria for pupil admission was ended with this legislation.

5.5.2.4

The Gender Recognition Act 2015

This legislation allows gender identity to be given legal recognition, by virtue of a Gender Recognition Certificate, without the requirement of medical intervention or assessment by the State, simply by the self-determination of any person aged 18 or over, who is ordinarily resident in Ireland and registered on Irish registers of birth or adoption or on the foreign birth register. This is due to be amended by the Gender Recognition (Amendment) Bill 2017 to consolidate the legal status of non-binary persons.

5.5.2.5

The Marriage Act 2015

Following a referendum amending the Constitution to provide recognition for the status of marriage irrespective of the sex of the partners, this statute placed same sex and heterosexual marriages on the same legal footing and ended civil partnerships. Section 7 grants exemption to religious organisations and their representatives from 60

[1980] IRLM 167. Author acknowledges advice from Judy Walsh on this point (note to author: 04.06.19). 62 Op cit, at p. 64. 61

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any requirement to recognise such marriages or to officiate in or otherwise participate in them.

5.5.2.6

The Workplace Relations Act 2015

This legislation governs the rights and responsibilities of employers and employees. It provided an adjudication process to settle disputes in the workplace by consolidating the various functions of the Labour Relations Commission, the Employment Appeals Tribunal (EAT), the National Employment Rights Authority and the Labour Court into a single body—the Workplace Relations Commission—which commenced in October 2015. There is a right of appeal to the Labour Court with a further appeal, on a point of law only, to the High Court.

5.5.2.7

The Employment Equality Acts 1998–2015

This legislation came into effect in 1998 and has since been amended by the Equality Act 2004 (exemption for religious bodies is provided in both this and in the Equal Status Act, s.7), the Civil Partnership Act 2010 and other statutes. It provides protection for workers against discrimination, harassment and sexual harassment in the workplace. It promotes equality in the workplace and prohibits discrimination across nine different grounds: gender; civil status; family status; sexual orientation; religion; age; race; disability; and membership of the Traveller Community.

5.5.2.8

The Equal Status Acts 2000–2018

This legislation came into effect on the 25th October 2000 and includes the Equal Status Act 2000, the Equality Act 2004, the Equal Status (Amendment) Act 2012 and the Equality (Miscellaneous Provisions) Act 2015. These statutory provisions prohibit discrimination in employment, housing assistance, vocational training, advertising, collective agreements, the provision of goods and services and other opportunities to which the public generally have access on any of the above nine grounds.63

63

A tenth ground specifically relating to housing—discrimination on the ground that a person is in receipt of a rent supplement from the State is prohibited—under s.13 of the Equality (Miscellaneous Provisions) Act 2015.

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5.5.2.9

The Equality Act 2004

This legislation abolished the upper and lower age thresholds while s.8 broadened the definition of ‘harassment’ in the 1998 Act.

5.5.2.10

The European Convention on Human Rights Act 200364

This legislation partially incorporates the ECHR, together with several of its Protocols, into domestic law. Irish courts are consequently instructed: in s.2, that ‘in interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions’.65

5.5.2.11

The Prohibition of Incitement to Hatred Act 1989

Under this statute it is an offence to make, distribute, or broadcast “threatening, abusive or insulting” words, images, or sounds with intent or likelihood to “stir up hatred”, where “hatred” is “against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation” (see, further, below at Sect. 7.5.1).

5.5.2.12

Other Legislation

Potentially of considerable importance, are a number of currently pending Bills including the Dying with Dignity Bill 2020.

5.6

Framework of Courts and Regulatory Bodies

Ireland, unlike the UK, is to continue its EU membership and will therefore continue to accept the superior appellate jurisdiction of the ECJ and the ECtHR as well as remaining accountable to various international committees for progressing the implementation of convention provisions.

64

(Commencement) Order 2003 (S.I. No. 483 of 2003). See, Foy v. An t-Ard Chlaraitheoir & Others [2007] IEHC 470 when a declaration of Convention incompatibility was made concerning the lack of legal recognition for transgender people under Irish law. 65

5.6 Framework of Courts and Regulatory Bodies

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International Courts and Regulatory Bodies

Ireland accepted the jurisdiction of the ECtHR in 1953 and subsequently that of the ECJ. The decisions of those bodies, together with those of the UN HRCommittee are applied, or referred to, as required to align domestic law with that of the EU (see, further, Sect. 3.3.1).

5.6.1.1

The European Court of Human Rights (ECtHR)

Under s.4 of the European Convention on Human Rights Act 2003 “judicial notice” is required to be taken of ECtHR judgments. In making its determinations, the ECtHR allows States a wide margin of appreciation66 when it comes to placing limitations on the manifestation of one’s religion, belief or exercise of conscience. In deciding whether there has there been such a limitation, it must be established that the infringement is: (a) prescribed by law and (b) necessary in a democratic society for a permissible purpose, i.e. directed to a legitimate purpose and proportionate in scope and effect (see, further, at Sect. 3.3.1.3).

5.6.1.2

The Court of Justice of the European Union (CJEU or ECJ)

The European Court of Justice and various other committees established by their respective international conventions to monitor implementation have intermittent relevance (see, further, at Sect. 3.3.1.2).

5.6.1.3

The Human Rights Committee (OHCHR)

This body of independent experts monitors implementation of the ICCPR. Ireland is required to submit a 4 yearly progress report to which the HRC responds and makes recommendations as to further goals (see, further, Sect. 3.2.3). In relation to the Optional Protocol 1, Ireland has registered the reservation that it does not accept the competence of the HR Committee to consider a communication from an individual if the matter has already been considered under another procedure of international investigation or settlement.

66

See, for example, Lithgow v. United Kingdom (1986) 8 EHRR 329, Fredin v. Sweden (1991) 13 EHRR 784, Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 EHRR 471. See, further, Legg (2012).

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5.6.2

Domestic Courts and Regulatory Bodies

As elsewhere, in practice most relevant issues are addressed by the national regulator for human rights and equality; though the High court also plays a well established role, as does the new Court of Appeal, and occasionally matters with a constitutional dimension are determined by the Supreme Court (IESC).

5.6.2.1

The Irish Human Rights and Equality Commission (IHREC)

In 2014 the Equality Authority (established in 1999) and the Irish Human Rights and Commission (established in 2000) merged to become the IHREC which assumed responsibility for regulating matters arising under the Employment Equality and Equal Status legislation and under the Human Rights Commission Act 2000. Its primary function is to protect and promote human rights and equality and to build a culture of respect for human rights.

5.6.2.2

The Workplace Relations Commission (WRC)

Established under the Workplace Relations Act 2015, the Commission replaced the Employment Appeals Tribunal and assumed the functions of many other bodies including the Labour Relations Commission, Rights Commissioner Service, Equality Tribunal and the National Employment Rights Authority. It deals with all complaints of discrimination in employment and access to goods and services.

5.6.2.3

The Labour Court

Equality claims may be heard by the Labour Court on appeal from the WRC.

5.7

Fundamental Human Rights and Conscience

Article 44.2.1 of the Constitution guarantees that all citizens are entitled to ‘freedom of conscience . . . subject to public order and morality’.

5.7.1

Right to Freedom of Expression

Article 40.6.1 of the Constitution provides for ‘the right of the citizens to express freely their convictions and opinions’, subject to public order and morality. The

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191

Prohibition of Incitement to Hatred Act 1989 outlaws hate speech, including incitement to hatred based on sexual orientation. Further reinforcement will be provided by the currently pending Criminal Justice (Aggravation by Prejudice) Bill 2016 with its more punitive provisions for those who commit an ‘an aggravated offence’ including in reference to sexual orientation and transgender identity.67 In October 2018 the Irish nation voted by referendum to delete from Article 40.6.1 a clause which explicitly criminalised the publication of ‘blasphemous matter’.

5.7.1.1

Personal Identity Issues

The introduction of the Gender Recognition Act 2015 enabled Ms Foy and other trans persons to obtain legal gender recognition for their gender identity by means of a Gender Recognition Certificate, on the basis of self-declaration, and to have their birth certificates amended accordingly. The currently pending Gender Recognition (Amendment) Bill 2017 may well result in a considerable increase in the issue of such Certificates. As yet there is no statutory power or process available whereby legal recognition can be given to those who identify as neither male nor female.68 The rulings of the ECtHR69 have been instrumental in injecting a recognition of a right to personal privacy into what, in Irish law, has been traditionally regarded as the public institution of marriage comprised of clearly defined roles and relationships.

5.7.1.2

Blasphemy and Proselytism

The offence of blasphemy, which had proved to be an enduring aspect of the freedom of expression in Ireland, was finally abolished by s.4 of Blasphemy (Abolition of Offences and Related Matters) Act 2019. Proselytism, on the other hand, has always been lawful and indeed has been pursued industriously by Irish missionaries—members of religious organisations—in African countries and elsewhere.

67

See, further, at: http://enarireland.org/proposed-hate-crime-legislation/ Also see: https://www. iccl.ie/wp-content/uploads/2018/10/Life-Cycle-of-a-Hate-Crime-Country-Report-for-Ireland.pdf. 68 See, further, 2018 review group’s recommendations at: http://www.welfare.ie/en/downloads/ GRA%20Review%20Report.pdf. 69 In particular, Goodwin v. United Kingdom [2002] 35 E.H.R.R. 447 and I .v. United Kingdom [2003] 40 E.H.R.R. 967.

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Whistleblowers

In Ireland, protection for whistleblowers is available mainly in the Protected Disclosures Act 2014 which makes it available to those who raise concerns about possible wrongdoing in the workplace and provides a means of redress if they are dismissed or otherwise penalised for having done so. Other legislation also provides protection: the Health Act 2004, as amended by the Health Act 2007, provides it for employees and members of the public who disclose possible wrongdoing within the health sector; the Protections for Persons Reporting Child Abuse Act 1998 provides it to those who might otherwise suffer victimisation or civil liability for reporting the abuse of children; and the Charities Act 2009 provides it for people who report alleged breaches of the legislation to the Charities Regulatory Authority.

Disclosures and the Law The Protected Disclosures Act 2014 Act makes no substantive distinction between public or private employment: all employees are equally and uniformly subject to its provisions. It permits disclosure to an external body, for example to a newspaper.

In a Public Service Context Public bodies are required to establish and maintain a whistleblowing policy that covers procedures for the making of protected disclosures by current and former workers and for dealing with such disclosures. The public bodies must provide their employees with written information relating to these procedures and must also publish an annual report setting out the number of protected disclosures made to them and the action taken. There is no similar obligation on private sector employers.

In a National Security Context The Protected Disclosures Act 2014 has a restricted application to members of the Defence Forces. Unlike whistleblower disclosures in other countries, in Ireland such disclosures have tended to be concerned with practices within rather than by the armed forces.70 The reported examples of whistleblowing reveal significant incidents of malpractice but—illustrating the important role of conscientious objection—as they posed no threat to national safety they could therefore be more readily accommodated.

70

See, further, Flynn et al. (2019), pp. 129–144.

5.7 Fundamental Human Rights and Conscience

5.7.2

193

Right to Freedom of Association/Assembly

The Constitution, Article 40.6.1, provides for ‘the right of the citizens to assemble peaceably and without arms’ and also protects the right to form an association. Both are made subject to legislative requirements protecting public order and morality. The UDHR, the ICCPR and many other international instruments also protect the rights of association and assembly. Short of inciting hatred, posing a threat to public safety, order or morals, or breaching the rights of others, any exercise of such rights in Ireland is assured of State protection. In practice, problems arise when this right conflicts with others. The Portmarnock Golf Club case71 provides an interesting illustration of some of the difficulties the law has with conscientious objection. It concerned a national institution, the best known golf club in the country, established for over a century, renowned internationally but with a membership restricted to men; women could play and participate in other ways but were denied membership. It might seem that a challenge to this gender apartheid approach could be safely termed ‘conscientious objection’ and, as with other instances of institutionalised inequality, would lead to a peremptory judicial resolution on the basis of well honed human rights principles which would see gender equality swiftly and firmly installed. In fact, nothing of the sort occurred. The challenge came not from a female golfer, with her beliefs in justice violated by a rejected membership application, but from the Equality Authority, and was then trailed through the judicial system for six years until the Supreme Court ruled in favour of the club; confirming the legality of its gender biased membership rules. Membership was a matter governed by the Registration of Clubs Acts 1904-1999, s.8(2)(a), which provides that ‘a club shall be considered to be a discriminating club if. . .it has any rule, policy or practice which discriminates against a member or an applicant for membership. . .’. This in turn had to be read subject to the Equal Status Act, s.9, which provides: 1) For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that— (a) if its principal purpose is to cater only for the needs of— (i) persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,

It was a given that Portmarnock’s membership rule discriminated on the ground of gender: the Club admitted only “gentlemen”; and arguably was, therefore, a “discriminating club”. The District Court found accordingly: “the principal purpose of the club is to play golf; the ordinary words of the statute did not ascribe to men’s golf a special need”; and it ruled that the membership rules violated equality law. The High Court took the view that while discriminatory, the rules could stand as: “in

71

Equality Authority v. Portmarnock Golf Club [2009] IESC 73.

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a tolerant and free and increasingly diverse society, it is not surprising that the type of exemptions envisaged in s.9 were enacted—as a result of which—in terms of registered clubs—it is permissible to have—exclusively—a bridge club for Bulgarians, a chess club for Catholics, a wine club for women and a golf club for gentlemen”. The IESC considered the central question to be whether the principal purpose of the Club was the playing of golf or whether, as the club contended, its principal purpose was to cater only for the needs of men. It determined in favour of the latter. The court considered the Equality Authority’s view, that facilities for the game of golf were not a ‘need’ of men exclusively, to turn on an interpretation of the term ‘needs’ that was narrow, outdated and unnatural. The appeal was dismissed. The observation made by O’Higgins J in the High Court was, of course, quite right: the freedom to form associations that cater for the specific needs of fellow members, to the exclusion of all others, is one of the earliest recognised human rights: one well litigated in the U.S;72 and guaranteed to attract objections—some conscientious—from those excluded. Those excluded from such associations, and relying on conscientious objection to challenge the status quo, will need to point to the countervailing authority of an alternative right.73 The record of peaceful demonstrations, marches and lobbying in Ireland—particularly, since 2015, in the context of the referendums on matters such as abortion and LGBT issues—testifies to the many occasions when such an approach has been successful.

5.7.2.1

Corporate Entities

In Gloria,74 the Equality Tribunal ruled that the complainant, an unincorporated association, did not have locus standi under the Equal Status Acts; that the legislative intent was to protect individuals and not bodies from discrimination. This interpretation is at variance with that adopted elsewhere, such as in the US., where organisations have been found to have locus standi.

5.7.3

Right to Freedom of Religion

The Constitution acknowledges a duty to “respect and honour religion” (Article 44.1) and provides for the freedom of conscience and the free profession and practice of religion, subject to public order and morality (Article 44.2.1). The European Convention on Human Rights Act 2003 incorporates the ECHR provisions while

72

Boy Scouts of America v. Dale, 530 U.S. 640, (2000) and Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995). 73 As did the marchers in Selma, Alabama when they challenged their disenfranchisement in 1965. 74 Gloria (Ireland’s Lesbian and Gay Choir) v. Cork International Choral Festival Limited, DEC-S2008-78.

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further protection is available under the EU Charter of Fundamental Rights and Article 18 of the ICCPR.

5.7.3.1

Manifesting Beliefs

To publicly manifest private beliefs is a common means of socially registering and self-affirming a religious identity. It represents a conscientious objection to a perceived disinterest in, or disdain towards, the beliefs in question.

Religion Specific Clothing, Symbols, Customs Etc The vestiges of its religious past are rapidly fading but Ireland retains Catholic iconography in many of its public institutions and the continuing if occasional presence of traditionally attired nuns in schools, hospitals, social care facilities etc while reassuring to many is probably experienced as at least incongruous to non-Catholics. The variable spectrum of female Islamic clothing (from hijab to chador and burqua) has not given rise to much controversy. However, in 2007, a member of the Sikh community, having been accepted for a post in the Garda Reserve, conscientiously objected when informed that he could not wear his turban on duty. His objection was supported by the Irish Sikh Council which argued that police forces in the UK and the U.S. permit the wearing of turbans. Nonetheless, an Assistant Commissioner advised that in order to preserve the public image of An Garda Síochána as an impartial police service he would have to wear the standard uniform.75 A subsequent discrimination complaint failed and the Sikh did not take up the post.76 Again, in Tavoraite,77 the firm belief of the plaintiff that whereas previously her religious belief did not mandate wearing the hijab it now did, led to problems in her workplace regarding the effect of the hijab on her capacity to perform her duties. This matter was ultimately settled out of court (see, further, below at Sect. 8.5.2).

5.7.3.2

Affirmative Action

The Employment Equality Acts 1998–2015, ss.24(1) and 33, together with the Equal Status Acts 2000–2018, s.14(1)(b) and 5(2)(h), all permit affirmative action in

75

Subsequently, as G. Whyte points out, Garda policy on this matter changed and in January Mr. Oberoi was admitted to the Garda Reserves. See, further, at: https://www.irishtimes.com/news/ social-affairs/badge-of-distinction-meet-the-first-sikh-in-the-garda-reserves-1.4466406. 76 An Garda Síochána v. Oberoi, [2013] IEHC 267. 77 Tavoraite v. Dunnes Stores, Unreported, Employment Appeals Tribunal, Dublin, November 13, 2012.

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certain circumstances by allowing more favourable treatment of employees or prospective employees. This applies not just to accessing jobs but also for more favourable conditions of employment.78 The decision in Quinn’s Supermarket resulted from a politically perceived need to extend ‘positive discrimination’ to the interests of a religious minority. The plaintiff’s argument—that special exemption for Jewish kosher butchers from the Sunday trading laws was discriminatory against non-Jewish shop keepers—was rejected, though the exemption was struck down on the basis that it went further than was necessary to protect religious freedom. Again, in Re Article 26 and the Employment Equality Bill 1996,79 s.12 of the Bill provided that the prohibition on religious discrimination would not apply to the selection of nurses or primary teachers for employment in any ‘religious, educational or medical institution which is under the direction or control of a body established for religious purposes’. Such institutions were permitted to give ‘favourable treatment’ on grounds of religion to employees, and to prospective employees in terms of recruitment—if necessary ‘to uphold the religious ethos of the institution’.80 This was termed ‘positive discrimination’ by counsel for the Attorney General, but must now be read subject to s.11 of the 2015 Act.

5.8

Conscientious Objection and Equality: Contemporary Caselaw

Article 40.1 declares: The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

This declaration and its caveat—the latter clause being, perhaps, a reaffirmation of allegiance to Catholicism—form the foundations for equality law in Ireland and provide support for its twin pillars: the Equal Status Act 2000–2018 and the Employment Equality Acts 1998–2015. The Employment Equality Directive 2000/78/EC, is also relevant. The Prohibition of Incitement to Hatred Act, 1989 provides added protection, as does the Code of Practice on Sexual Harassment introduced by the Dept. of Justice and Law Reform in 2012. In addition, the Irish Human Rights and Equality Commission Act 2014, s.42, places a public sector duty on all public bodies, as broadly defined under s.2, to be proactive in taking steps to promote equality of opportunity and protect human rights in respect of employees and service users. As in England and Wales, domestic legal foundations must also

78

See, Fleming v. Ireland, [2013] IEHC 2. [1997] 2 IR 321. 80 Ibid, at p. 351. 79

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support related EU initiated developments and are adjusted accordingly. Most alleged breaches of equality law are litigated on the basis of alleged discrimination, only where the complainant must be motivated by, or be reacting to, the dimension of religion/belief/conscience that redefines the issue as representative of something more than an alleged breach of the law.

5.8.1

Public Health

In Ireland, an unusually large proportion of public health infrastructure is owned, managed and/or staffed by religious organisations and their collective ownership of some of the most expensive land in the country inhibits public service development.81 Indeed, Dublin’s two largest hospitals, St Vincent’s and the Mater, are owned and managed by the Sisters of Charity. This is important because the exemption of such facilities from statutory equality and non-discrimination provisions in certain circumstances inevitably generates occasions for conscientious objection as is evident in the resistance of staff in some hospitals, operating under the control of religious bodies but funded by the State, to perform abortions or be involved in IVF or other family planning procedures.

5.8.1.1

Abortion, Contraception IVF and Surrogacy

The availability of certain health services has been and often continues to be subject to the religious beliefs of the organisations and/or medical staff funded by government to be service providers: abortion, contraception and sterilisation being areas where religious sanctions have generated most social controversy;82 particularly so during the 1983 and 2018 national referendums on abortion, the former resulting in the 8th Amendment (which guaranteed the equal right to life of a mother and her unborn child) and the latter in its repeal.

Abortion In 2010, the ECtHR in A, B and C v. Ireland,83 considered the rights of a Lithuanian resident in Ireland denied access to abortion and held that a broad margin of 81

A 1978 survey conducted by Dublin Corporation established that in that city alone a total of 1511.8 acres were owned by various religious entities. 82 The government announcement, in April 2017, of its intention to vest ownership of the new national maternity hospital in the Sisters of Charity provoked much controversy. See, further, at: https://www.thesun.ie/news/900916/new-national-maternity-hospital-must-obey-the-churchclaims-bishop/. 83 [2010] ECtHR (GC) (No. 25579/05) (16 December 2010).

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appreciation should be accorded to Ireland—sufficient to uphold the decision of the Irish court—because of the “acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake”.84 Interestingly, this was challenged in the dissenting opinion of six judges who considered that such reasoning justified exactly the opposite approach and pointed out that:85 it is the first time that the Court has disregarded the existence of a European consensus on the basis of “profound moral views”. Even assuming that these profound moral views are still well embedded in the conscience of the majority of Irish people, to consider that this can override the European consensus, which tends in a completely different direction, is a real and dangerous new departure in the Court’s case-law.

This line of argument most obviously resonates with the circumstances surrounding the Dudgeon86 decision but it also recalls the moral context prevailing when the court ruled in Norris87 that the “Christian and democratic nature of the Irish State” warranted the continued criminalisation of homosexuality and again when the Zappone88 and Foy89 cases were decided. It exemplifies the position of the conscientious objector. It is also an argument with a corollary, one with an acute relevance in a pandemic: what are the limits to private moral objections to public norms? Personal objections to complying with government rules governing vaccination, social distancing or self-isolating, can seriously damage the public good. The proportionality principle would seem relevant (see, also, Sect. 10.2.1.1). Subsequently, the 2012 insertion of Article 42A into the Constitution with its specific reference to “all children” was judicially interpreted as intended to extend protection to the unborn and as a consequence the unborn could be treated as having a right to family life.90 This was followed by the introduction of the Protection of Life During Pregnancy Act 2013, providing for the termination of pregnancy in cases where there is a risk of loss of life from physical illness in an emergency or a risk of suicide, was so limited that it effectively denied Irish women access to abortion in circumstances legally permitted in most other developed nations. Then in 2018 the IESC held that unborn children had no rights under the Irish Constitution beyond the right to life.91 Mounting public dissatisfaction led to the 2018 national referendum—needed to overcome the conscientious objections of a minority, largely

84

Ibid. Joint dissenting opinion of Judges Rozakis, Tulkiens, Fura, Hirvea, Malinverni, and Poalelungi at para 9. 86 Dudgeon v. United Kingdom, Application No. 7525/76, (1981). 87 Norris v. Attorney General, IESC 3, I.R. 36. 88 Zappone & Gilligan v. Revenue Commissioners & Ors, [2006] IEHC 404. 89 Foy v. An t-Ard Chláraitheoir and Others, [2007] IEHC 470. 90 See, IRM v. MJELR (HC), 29 July 2016. Also, see, In re E, [2008] IEHC 68. 91 M v. Minister for Justice and Equality [2018] IESC 14. 85

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religious—and its decisive vote in favour of abolishing the 8th Amendment, thereby paved the way for legislation liberalising the law relating to abortion.92 Liberalisation came later that year with the Health (Regulation of the Termination of Pregnancy) Act 201893 requiring all maternity hospitals to provide terminations for pregnancies of up to 12 weeks gestation. The legislation included a provision stating that there was no requirement ‘obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy . . . to which he or she has a conscientious objection’; an exemption pointedly confined to individuals and not available to institutions;94 but also, and crucially, an exemption which is undefined and does not require any substantiation. Subsequently, the Medical Council issued revised ethical guidance for doctors who have conscientious objections to particular forms of treatment, procedures or care, including abortion.95 The revised guidance states that doctors may refuse to provide, or to participate in carrying out, a procedure, lawful treatment or form of care which conflicts with their sincerely- held ethical or moral values. However: If you have a conscientious objection to a treatment or form of care, you should inform patients, colleagues, and, where relevant, your employer as soon as possible. If you hold a conscientious objection to a treatment, you must: – inform the patient that they have a right to seek treatment from another doctor; and – give the patient enough information to enable them to transfer to another doctor to get the treatment they want. If the patient cannot arrange their own transfer of care, you should make these arrangements on their behalf. In an emergency situation, you must provide - as a matter of priority - the care and treatment your patient needs.

Fearing that the ‘conscience clause’ in the 2018 statute could jeopardise the government commitment to provide services for the termination of pregnancy on a universal basis, the Chief Commissioner of the Irish Human Rights and Equality Commission warned that:96 The State needs to make sure that, in reality, there are no barriers to safe, timely and equal access to services. This means that, in practice, the right to conscientious objection needs to be effectively balanced with women and girls’ right to legal medical care, and that access to a termination of pregnancy should not be determined by what part of the country you live in.

To be legally available: on the recommendation of a doctor within the first 12 weeks of pregnancy; or outside that period, on the recommendation two doctors when there is “a risk to the life of, or of serious harm” to the physical or mental health of a pregnant woman, the unborn child is not viable and it is “appropriate” to terminate to avert that risk. 93 Followed, in August 2019, by publication of the Medical Council’s Ethics Working Group updated Guide to Professional Conduct and Ethics (8th ed). 94 See, further, Donnelly and Murray (2020), pp. 127–132. 95 See, further, at: https://www.irishtimes.com/news/ireland/irish-news/doctors-issued-with-newethical-guidelines-on-providing-abortion-1.4002566. 96 A warning not without relevance to the US where ‘religious liberty laws’ are having exactly that effect. See, further, at: https://www.ihrec.ie/human-rights-and-equality-commission-calls-forconscientious-objection-and-access-provisions-to-be-clearly-set-out-in-abortion-legislation/. 92

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A year later, reports indicated that the Commissioner’s fears were well founded: ‘the rollout of full abortion services has been slower than expected: although there is some level of service available in all maternity hospitals, just ten out of 19 maternity hospitals or units offer full termination of pregnancy services . . . in at least three maternity hospitals because of conscientious objection complications’.97 Moreover, a contemporaneous research project reported ‘a lack of training and a considerable level of unwillingness to participate in this process among Irish GPs’ of whom less than half, 48%, would be willing to prescribe abortion pills (NorLevo).98 It would seem that while the law has become more liberal, in practice access to abortion services remains problematic.

Contraception In Ireland, doctors and nurses have legal protection, under the 2018 Act, for their right to conscientiously object but other healthcare professionals and institutions are excluded. According to the professional guidance prevailing prior to the Act, the provision of NorLevo is at the discretion of the individual pharmacist, following a mandatory consultation with the customer.99 The ‘conscience clause’ in Principle One of the guidance permitted a refusal of provision if this was necessary for the pharmacist to avoid breaching their personal moral standards. A reported instance, immediately preceding the introduction of the 2018 Act,100 of a woman who had been refused NorLevo by a pharmacist following her alleged rape indicates, perhaps, why exemption has not been extended to such service providers. This is clearly a matter of concern to the considerable number of pharmacists who would prefer not to be providers of contraceptives particularly of abortificients.

IVF and Surrogacy As of 2020, there continues to be no regulatory framework governing the use of human embryos for research purposes. Whether the law should permit the patenting of inventions which directly use hES (human embryonic stem cells) cells, or have used them in their development, was initially considered to be constitutionally prohibited under the clause protecting ‘the right to life of the unborn’. At present, 97

See, The Journal.ie, at: https://www.thejournal.ie/conscientious-objection-abortion-hospital-472 5826-Jul2019/. 98 See, O’Connor, R., et al, ‘Knowledge and attitudes of Irish GPs towards abortion following its legalisation: a cross-sectional study’, BJGP Open 2019, at: https://bjgpopen.org/content/ bjgpoa/3/4/bjgpopen19X101669.full.pdf. 99 See, Pharmaceutical Society of Ireland, Code of Conduct, December 2013. 100 See, further, at: https://www.irishpost.com/news/irish-woman-claims-pharmacist-refused-emer gency-contraception-following-rape-ordeal-149459.

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following the High Court ruling in M.R. v. T.R.,101 subsequently confirmed by the IESC that embryos held in cryopreservation and created outside the womb cannot be considered to constitute “life” and are thus not protected under the Constitution, the situation is uncertain. Since then Bills have been drafted to prevent or otherwise regulate the use of embryos for research, including, the Human Tissues Bill 2008, but have never become law. For the many same sex couples unable to “beget” children102 the prospect of becoming a parent means taking a route which involves assisted human reproduction services or surrogacy but, until the Assisted Human Reproduction Bill becomes law, there is no specific legislation to govern either of these services. The Children and Family Relationships Act 2015, most of which came into force in that year, as subsequently amended by the Children and Family Relationship (Amendment) Act 2018, does address donor assisted human reproduction and the parentage of children born through donor conception, but excludes surrogacy.103 As things stand in 2020, surrogacy agreements while not illegal are unenforceable.104 Consequently, it is estimated that there are now several hundred children living in Ireland born to surrogate mothers whose legal status is uncertain and their human rights seriously compromised;105 a state of affairs which, as the IESC has pointed out, “makes statutory law reform in this area more than urgent”.106 The basic rule that the birth mother is the legal mother of the child was reaffrmed by the IESC in M.R. and D.R. & others -v- An t-Ard- Chlaraitheoir & others.107 This remains a difficult area of law, one where polarized moral views and conscientious objections have obstructed the completion of the legislative process in respect of the General Scheme of the Assisted Human Reproduction Bill, first published in 2017, which promises to bring some legal clarity to these matters.

SOGI Related Health Issues The above legislative developments, together with the Gender Recognition Act 2015, have greatly eased the route to parenting for same sex and trans couples but there remains the difficulty that the courts continue to attach considerable weighting 101

[2006] IEHC 359 (15 November 2006). The right to ‘beget’ children was a matter considered by Costello J. in Murray v. Ireland [1985] I.R. 532. 103 See, R.G. v. D.S.P., Circuit Court (Judge Lindsay), unreported judgment, (5th July 2012). 104 See, the Report of the Commission on Assisted Human Reproduction, Dublin, 2005 which recommended that a child born through surrogacy should be presumed to be that of the commissioning couple. Also, see, M.R. & Anor v. An tArd Chlaraitheoir [2013] IEHC 91. 105 See, further, at: http://www.aclsolicitors.ie/news-events/current-news/legal-status-of-surrogacyin-ireland/. 106 M.R. and D.R. (suing by their father and next friend O.R.) & ors v An t-Ard-Chláraitheoir & ors [2014] IESC 60 (7 November 2014), per Hardiman J. 107 [2014] IESC 60. 102

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to the blood-link factor as a determinant of the welfare test when making decisions regarding arrangements for a child’s custody or upbringing.108 In N. v. HSE109 as in J. McD. v. P.L.,110 the court stressed the importance of blood or genetic links between a parent and child and intimated, at the very least, that these relationships or links were of paramount importance in deciding parenthood.111 Subsequently, in M.R. and D.R. & others -v- An t-Ard- Chlaraitheoir & others,112 the IESC reaffirmed the principle (mater semper certa est) that the birth mother is the legal mother of a child. This judicial approach may well present problems for same sex or trans persons seeking to secure parenting arrangements through guardianship, custody, surrogacy or adoption.113 In Ireland, unlike in the UK, medical treatment or surgical intervention for gender dysphoria is not required in order to legally qualify for a Gender Recognition Certificate; although many do opt for such intervention as is necessary to realign physical characteristics with their gender identity. Prospective trans applicants, aged 16 to 18, will no longer require prior approval of the court once the Gender Recognition (Amendment) Bill 2017 becomes law. The continued influence of religion, religious organisations and conscientious objection from such sources, disproportionately impacts certain services. Gender reassignment surgery, for example, is not possible in Ireland; those requiring such a service need to travel to England or elsewhere.114

5.8.1.2

Medical Practitioners and Assisted Death

In religious terms the taking of one’s own life, or being complicit in that endeavour, has traditionally been treated as a serious violation of fundamental beliefs. In Catholic Ireland, the implacable conscientious objection of those who believe that taking such action is prohibited on religious grounds has for generations prevailed against those believing it to be justified in order to end suffering. Such objections were further compounded for medical practitioners, bound by their Hippocratic Oath to do no harm.

108

In an early case, O’R v. EH [1996] 2 IR 248, the IESC had been more hesitant, considering the blood link was only one factor among many to be considered in protecting the child’s welfare and that the weight to be given to it depended on the circumstances of the case as a whole. 109 [2006] 1 I.R. 374. 110 [2010] 2 I.R. 199. 111 See, also, Roche v. Roche, [2010] 2 I.R. 321 when the Supreme Court considered whether a frozen embryo could constitute an “unborn” within the meaning of Article 40.3.3. 112 [2014] IESC 60. 113 See further: https://lgbt.ie/advocacy/campaigns/. Also, see, LGBT Ireland at: https://lgbt.ie/advocacy/submission/. 114 See, further, Szydlowski (2016), pp. 239–263.

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Suicide Until 1993, a person found to have committed suicide—a felo de se, or felon of himself—was held to be guilty of a crime and punitive consequences followed for their mode of burial, disposal of their estate and their reputation. The Criminal Law (Suicide) Act 1993, s.2(1), decriminalised suicide despite organized opposition from the Catholic Church and others.

Refusing Medical Treatment Anyone capable of making an informed decision is entitled to refuse treatment. Such a decision has been known to be exercised by a Catholic patient conscientiously objecting to being treated in hospital by a Muslim.115 In Re A Ward Of Court116 the IESC upheld the right to refuse treatment, even if such a refusal can lead to death, by granting a mother permission to authorise palliative care only for her daughter who was in a persistent vegetative state. Determining capacity, however, is a crucial first step. As Laffoy J explained in Fitzpatrick & Anor v. K. & Anor:117 If, as a competent adult, the patient refused to accept the treatment and no issue arises as to the capacity of the patient to make that decision, the clinician's duty to provide such treatment is discharged. However, if an issue arises as to the capacity of the patient to refuse treatment, the duty of the clinician to advise on and provide the appropriate treatment remains.

This was a case where the court found that an ex parte decision of the High Court to permit the master of the Coombe Women’s Hospital to have a blood transfusion administered to a woman who had refused it on grounds of conscientious objection, while flawed, was not a denial of her constitutional rights and that the action was justified by the circumstances of the case. The case concerned a French speaking woman from the Democratic Republic of Congo, who required an emergency blood transfusion following giving birth in hospital. On admission she had stated that she was a Catholic but when refusing the blood transfusion claimed to do so on the grounds that it was against her beliefs as a Jehovah Witness. Abbot J concluded that while she was competent to decide, she might lapse into unconsciousness when she would no longer be so. Further, he was prepared to override her decision on the basis that the welfare of her child, newly born into the State with no other parent in sight, was paramount, and it was in the interests of the child that the wishes of his mother, which might result in her death, should be overridden. He granted the ex parte application and the blood transfusion was successfully administered. Subsequently, Laffoy J on reviewing his decision noted that the patient did not have the advance 115

See, further, at: https://www.thejournal.ie/doctor-refusal-tallaght-2496379-Dec2015/. [1996] 2 IR 79. 117 [2008] IEHC 104. 116

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directive card normally carried by Jehovah's Witnesses and had told the master that, as an alternative to the transfusion, she could be given Coke and tomatoes. Laffoy J found that hospital staff were objectively justified in doubting the mother’s capacity to refuse a blood transfusion. In relation to the balancing of the rights of mother and child, she said this would only arise if the court had found that the mother had full capacity to refuse a blood transfusion.

Medically Assisted Death The Criminal Law (Suicide) Act 1993, s.2(2), makes it an offence punishable by 14 years imprisonment for anyone to aid, abet, counsel or procure the suicide or attempted suicide of another. Palliative sedation, however, may be administered in situations where a dying person is experiencing extreme physical or psychological suffering, for which there is no effective treatment, if administered with the sole intention of relieving intractable distress.118 In 1995, Hamilton CJ declared: “it is important to emphasise that the Court can never sanction steps to terminate life”.119 This sentiment was re-affirmed more recently by the IESC ruling in Fleming v. Ireland & ors,120 which then determined that the right to life in Article 40.3.2 of the Constitution “does not import a right to die.”121 As Denham CJ said of the constitutional protection of the right to life, this cannot logically include a right to terminate that life or have it terminated, as “in the social order contemplated by the Constitution, and the values reflected in it, that would be the antithesis of the right rather than the logical consequence of it”.122 While this approach will leave those who do not subscribe to it feeling that they are being denied access to a human right now recognized by the ECtHR123 it is nonetheless very representative of the views of many who for religious reasons have resolutely conscientiously objected to any change in the law. Indications that such a change may be coming124 first became apparent in 2015 with the acquittal of Ms O’Rorke for allegedly assisting her friend’s suicide by obtaining barbiturates for that purpose and for also making funeral arrangements.125 In the same year, a Private Member’s Bill to provide for medically assisted dying

118 See, the European Association for Palliative Care (EAPC) 2009 Framework on the use of sedation in palliative care. 119 In Re a Ward of Court (withholding medical treatment) (No. 2) [1995] 2 ILRM 401, per Hamilton C.J. at p. 120. 120 [2013] IESC 19. 121 Ibid, at para. 108. 122 [2013] IESC 19 at para. 113. 123 Haas v. Switzerland Application No. 31322/07, (2011), at para. 51. 124 See, further, at: https://data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_ justice_and_equality/reports/2018/2018-06-25_report-on-the-right-to-die-with-dignity_en.pdf. 125 See, further, at: https://www.bbc.co.uk/news/world-europe-32499331.

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was submitted to the Dáil but failed to become law. More recently, another such initiative was launched. The Dying with Dignity Bill 2020 defines a “terminal illness” as “incurable, progressive, and. . . which cannot be reversed by treatment”, as verified by two medical practitioners, but sets no time limit for the “expected death”. Both medical practitioners would have to be satisfied that the person seeking to die was fully informed of the palliative, hospice and other care options available to them and he or she would then be required to wait 14 days after their decision before it could be activated (reducible to six days if both medical practitioners believe that death could occur within the next month). The Bill provides for the conscientious objection of medical practitioners who are morally against assisting in a patient’s death, placing a personal responsibility on any doctor not willing to provide requested assistance with the death of terminally ill patient to refer that patient to another doctor which, arguably, will be compromising for palliative care doctors. The Bill was vigorously opposed by the Catholic Bishops Conference which conscientiously objected for reasons that included:126 The Bill would coerce the consciences of objecting healthcare providers in order to facilitate something they know to be gravely immoral and utterly incompatible with their vocation to heal. This burdening of conscience is unnecessary, disproportionate and seriously unjust.

5.8.1.3

Blood and Organ Donations

Organ donations and transplants have become a well established aspect of medical practice in Ireland: in 2016 a total of 280 people received a life-saving organ transplant and 231 did so in 2018.127 Currently Irish law operates on an ‘opt-in’ basis as regards both blood and organ donations: an individual must positively decide to donate.128 Proposed legislation will provide for an ‘opt-out’ approach in relation to organ donation, though in practice it will remain subject to endorsement by the next of kin. The lifetime ban on homosexuals donating blood to the Irish Blood Transfusion Service ended in January 2017. Such a donor, who has not engaged in homosexual relations for 12 months, is now able to donate blood if he meets other blood donor selection criteria. However, many in the Irish LGBT community have called for the deferral period to be reduced in line with other European countries, some of which have eliminated it.

126

See, further, at: https://www.catholicbishops.ie/2021/02/12/bishops-submission-on-the-dyingwith-dignity-bill-2020/. 127 See, the Organ Donation and Transplant Ireland (ODTI) website at: https://ika.ie/organdonation-transplant-ireland/?doing_wp_cron¼1609253787.9867789745330810546875. 128 See, further, at: ttps://www.citizensinformation.ie/en/health/health_services/blood_and_organ_ donation/organ_and_body_donation.html.

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The Madden report129 in 2006 continues to cast a long shadow, in the minds of some, over the respect that health care professionals might have for the conscientious objections of relatives to the use of the organs of a deceased family member. The ‘organ retention scandal’, the subject of that report, documents the hospital practice—over a period of at least three decades—of retaining some organs of children, following routine post-mortems, without the knowledge and permission of next-ofkin. In the post-Madden era it is now clearly established that organ donation must be authorised by the donor or by their next of kin. There would seem to be no information available as regards any conscientious objection that health care staff mught have to involvement in organ donation and transplant or in respect of the related law or professional guidance.

5.8.1.4

Vaccination

Articles 41 and 42 of the Constitution, with their emphatic protection for the rights of parents and family, suggest that the introduction of a law requiring mandatory child vaccination would constitute an impermissible State interference with parental authority. A proposition that remains to be tested. The distribution of legal responsibilities between State and parents for child vaccination was examined by the IESC in North Western Health Board v. W. (H.)130 when it considered whether the parents of a 14 month old child could be required by court order to permit the Health Board to conduct a medical test—the PKU test—on their child. The PKU test is routinely administered in most, if not all, countries in Western Europe as it is in the US, and in none—including Ireland—is it compulsory. The Board had notified the parents that ‘there is no risk whatever in having the test done but on the other hand the absence of the test can have catastrophic consequences for the child should he or she suffer from one of the metabolic conditions which the test is designed to screen for’. The parents’ refusal was on conscientious grounds: ‘We refuse to allow blood samples being taken, as those can only be obtained by invasive measures . . . It is our strong religious belief, that nobody is allowed to injure anybody else’. Ultimately the court found that to issue the order sought would, in effect, be to make the PKU test mandatory, something the legislature had refrained from doing. In the absence of any immediate and serious risk to the life or health of the child, it held that the decision was one which the parents were constitutionally entitled to make without State interference. This is a curious case, which seems quite anomalous in the absence of any legal duty to vaccinate or be vaccinated, but its relevance lies: in the fact that, notwithstanding the absence of a statutory duty, the courts recognised the legitimacy of a conscientious objection challenge; and in the legal weighting attached to that objection. The judiciary were quite clear that this case was to be distinguished

129 130

See, further, Murphy (2006). [2001] IESC 90.

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from Ryan v. Attorney General.131 The constitutional protection afforded to the rights of parents and the family, under Articles 41 and 42, could not lend a determinant weighting to a parental conscientious objection in circumstances where statute law required universal compliance and any non-compliance on the grounds of private conscience presented a danger to public health and wellbeing. As the President of the High Court, Costello P, stated in an article entitled ‘The Terminally Ill: The Law’s Concern’132 “in the case of contagious diseases, the claims of the common good might well justify restrictions on the exercise of a constitutionally protected right to refuse medical treatment”.133 An observation not without implications for vaccination in a pandemic context.

Law, Government and Vaccination in the Covid-19 Pandemic A 2018 study found that 11 of 31 European countries surveyed had compulsory vaccination laws.134 Ireland was not one of them. As vaccines are only recommended, parents and citizens are entitled to withhold consent. The onus placed on employers, under the Safety, Health and Welfare at Work Act 2005, to carry out a risk assessment to identify and remove or minimise any risks to employees in their workplace, does in theory provide the necessary authority for the former to impose on the latter a requirement to produce evidence of vaccination— where the absence of such is considered to pose such a risk in that particular workplace—as a condition for continuing in employment. The HSE, in a Spring 2021 policy statement, declared that frontline health care staff who refused to be vaccinated would be removed, under the power of the 2005 Act, as refusal would be construed as constituting a risk to fellow employees and to those seeking access to services. However, constitutional protections safeguarding the privacy and autonomy of all citizens may make this theoretical power difficult to implement. By mid-2021, hospitality venues were beginning to require evidence of vaccination for access to services.

5.8.2

Social Care Services

Largely built upon foundations laid by religious organisations, contemporary public social care provision in Ireland is now mainly the responsibility of government bodies. Nonetheless, the assistance provided by such organisations—in areas such as

131

[1965] IR 294. Irish Jurist, Vol. 21, No. 1, (1986), pp. 35–46, at: https://www.jstor.org/stable/44027764?seq¼1. 133 Cited with approval by Hamilton CJ in Re A Ward Of Court, [1996] 2 IR 79 at para 149. 134 See, Bozzola (2018). 132

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services for the elderly, disabled and mentally ill—remains greater than in many other modern developed nations.

5.8.2.1

Adoption and Foster Care

By the late twentieth century the provision of adoption and foster care services had passed firmly, if not quite exclusively, into the hands of government bodies with a greatly reduced role for denominational agencies. Adoption services and foster care services are now almost wholly provided by TUSLA, a government body, while adoption is regulated by the Adoption Board.

Service Refusal Adoption and foster care services are subject to the equality and non-discrimination provisions of the Employment Equality Acts 1998–2015 and the Equal Status Acts 2000–2018. These ensure that members of the LGBT community are able to fully participate in those services: the Children and Family Relationships Act 2015, as amended by the Adoption (Amendment) Act 2017, in particular removed obstacles to same sex couples adopting or fostering. The objections articulated by Cardinal Sean Brady in 2008—more theological and doctrinaire than conscientious—calling upon all those committed to the “probity of the Constitution, to the moral integrity of the Word of God, and, to the precious human value of marriage between a man and a woman as the foundation of society” to stand firm and resist the legalisation of LGBT relationships has long since ceased to be representative.135

5.8.2.2

Social Care Facilities and Benefits

Ireland, as stated, has a particularly strong nonprofit sector in which religious organisations are dominant, increasing the frequency of intersects between religion and equality and the corresponding probability of conscientious objections. For example, the proposed new maternity hospital on the site of the existing St Vincent’s hospital has for years generated protests and conscientious objections regarding the possible constraints that may emanate from the Catholic organisation’s ownership and ethos of this national health facility.

135 Irish Catholic Bishops’ Conference, ‘Vision 08: A Vision for Catholic Education in Ireland’, Maynooth, 2008.

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Public Officials: Marriage Registrars Etc

The dividing line between private beliefs and public impartiality—emphasised in the law and practice of countries such as England and Canada—is not so clearly drawn in Ireland. Strict secularism in public service delivery in a country where so much public sector provision is delivered by religious organisations, and where porous sector boundaries facilitate the permeation of Catholicism throughout the social infrastructure, is probably unattainable.

Marriage Registrars In Ireland, any church, religious organisation or marriage registrar—known as a ‘religious solemniser’—with an objection to same sex marriage is statutorily exempt from involvement in such a ceremony. Under the Marriage Act 2015, s.7(1)(b), a ‘religious solemniser’ cannot be obliged to officiate at any marriage not recognised by the religious body of which the solemniser is a member’; negating any need for an individual solemniser to rely on conscientious objection. The Registrar-General maintains a register of marriages in accordance with the Civil Registration Act 2004 as amended by the Civil Registration (Amendment) Acts 2012 and 2014.

Other Public Officials The, perhaps innate, deference towards a traditional religious ethos pervades some public service institutions—education, hospitals and more generally in health and social care facilities—where the buildings and often the staff are those of the Catholic Church, though running costs are funded by government. The tension between the duties to be both equality and faith compliant in the delivery of some public services can lead to staff resorting to conscientious objection—e.g. as regards access to adoption, to contraceptives or in integrating SOGI issues into the school curriculum—in attempts to reconcile the irreconcilable.

5.8.3

Public Education

The constitutional framing of the State/parent relationship in relation to the public education system is in terms that leave no doubt as to the importance of the weighting attached to it. It is also one of the few contexts in which the Constitution refers to a need to protect the pivotal significance of ‘conscience’.136 Yet, over decades of court rulings, there is little indication in the judgments of any focused

136

The Constitution also refers to ‘conscience’ in Article 44.2.1.

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attention being given to this particular provision. There may be some truth in Coen’s comment that “the Irish courts have always upheld the rights of organised religion in the face of challenges by individuals, sometimes in apparent disregard of the constitutional text”.137 Article 42.3.1 declares that ‘the State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State’, a requirement to be read as bridging parental rights (Article 42.1 and 2) and State duties (Article 42.3.2 and 43.4) in respect of children’s education. In both Re Article 26 of the Constitution and the School Attendance Bill 1942138 and D.P.P. v. Best139 the courts examined the provisions of these Article and those of relevant statute law140 as they related to the right of parents to provide for the education of their children, subject to the right of the State to intervene. They both concluded in a finding that the parental right to provide “a certain minimum education” by way of home schooling was conditional upon the State satisfying itself that parental provision met such an equivocal standard. In neither was any consideration expressly given to the claimants right to conscientiously object, nor to the weight that might be accorded to such an objection, in circumstances where access to a public school was impeded by distance or by denominational concerns (both factors often being pressing concerns for rural Protestant families). Article 44.2 of the Constitution declares that ‘State aid for schools shall not discriminate between schools under the management of different religious denominations’. However, the public school system has remained very largely governed by the Catholic Church since the founding of the State: some 97% of primary schools and perhaps 50% of secondary schools are State funded but managed by religious organisations: 90% of all primary schools are controlled by the Catholic Church.141 This was reinforced by the Education Act 1998, s.15(2)(b), which confered authority on school ‘patrons’ to whom Boards of Management are accountable for upholding the ethos of a school.142 As by far the majority of schools have the Catholic Church, or its representative, as its ‘patron’, the public school system is, in effect, obliged to maintain a Catholic religious ethos.143 This necessarily results in the education of 137

Coen (2008), p. 460. [1943] IR 334. 139 [1999] IESC 90. 140 School Attendance Act 1926 (No 17) sections 4, 17 and 18. 141 Op cit, which clearly established that the State could support denominationally controlled education in discharging its obligation to provide for free primary education. 142 The 1998 Act also obliges Boards of Management to take account of ‘the principles and requirements of a democratic society and have respect and promote respect for the diversity of values, beliefs, traditions, languages and ways of life in society’. 143 As reinforced by Rules for National Schools issued by the Department of Education in 1965, Rule 68 of which provides: 138

Of all the parts of the school curriculum Religious Instruction is by far the most important, as its subject matter, God’s honour and service, including the proper use of all man’s faculties,

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most Irish children being delivered through that particular religious ethos, regardless of whether this is compatible with whatever religion is or is not practiced in their family home. Any such faith based system will inevitably attract conscientious objections from those who perceive themselves as excluded. This, indeed, would appear to have been the case in O’Shiel v. Minister for Education144 when a group of parents, who collectively conscientiously objected to existing provision, established their own primary school (to be run in accordance with the Rudolf Steiner philosophy) and then sought to claim, under Article 42, the right to free State education, by obtaining State funding for operational costs. Rejecting their claim, the court found that the State had acquitted itself of its responsibilities by funding other accessible schools in the locality locality (though, the conditions imposed by the State on funding— having teachers with recognised qualifications and also teachers capable of teaching Irish—were also factors taken into consideration). Arguably, 20 years later, if such a group could prove that it was committed to such a philosophy (which passes the legitimacy and cogency test), that their children’s needs could be appropriately met by that specialist service, which would also deliver a public school standard of education, and that the local schools were unable to provide an equivalent specialist service, then their conscientious objection would have a forceful legitimacy. Government initiatives to moderate this state of affairs have recently been launched.145 The religious exemption in the Employment Equality Act 1998 was removed by the Employment Equality Amendment Act 2015 while reforms introduced by the Education (Admission to Schools) Act 2018 prohibit State funded Catholic-run primary schools from giving preference to Catholic children.146

5.8.3.1

Schools, Teachers and Parents

Unlike other countries, a very large proportion of the buildings and staff constituting the Irish public education system continue to be provided by religious bodies— mostly by the Catholic Church—and all teacher training colleges are denominational. In short, a denominational religious ethos is an institutionalised aspect of that system which, arguably as an unavoidable corrolary, has established conscientious

and affords the most powerful inducement to their proper use. Religious Instruction is, therefore, a fundamental part of the school course, and a religious spirit should inform and vivify the whole work of the school. 144

[1999] 2 IR 321. The IHREC recommended that the Bill should amend the Equal Status Acts in order to give effect to the principle that no child should be given preferential access to a publicly funded school on the basis of their religion and noted that the Bill could place children of non-Irish or new migrant communities at a disadvantage when compared with children of Irish parents, in “potential violation” of the EU Race Equality Directive. 146 Author acknowledges advice from Judy Walsh on this point (note to author: 04.06.19). 145

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objection as an equally institutionalised response from those of other denominations and of none who perceive themselves as relatively disadvantaged. In Campaign to Separate Church and State Ltd147 a conscientious objection to the constitutionality of State funding of school chaplains was launched by an organisation opposed to State involvement with religion, arguing that this use of funding discriminated against those of non-Christian beliefs and secularists and would be better directed towards improving non-religious education services. The court found that parents had the right to have religious education provided in the schools which their children attend and should not be obliged to settle for mere religious ‘instruction’. However, the legitimacy of this conscientious objection received support in February 2016, when the United Nations Committee on the Rights of the Child issued a report urging Ireland to ‘expeditiously undertake concrete measures to significantly increase the availability of non-denominational or multi-denominational schools and to amend the existing legislative framework to eliminate discrimination in school admissions, including the Equal Status Act’. The interesting Sinnott case,148 which preceded the Zappone149 and Foy rulings,150 may also, perhaps, be construed in terms of conscientious objection. The plaintiff, a 22-year-old autistic person with a profound learning disability, initially succeeded in his claim that the State was under a duty to provide him with free primary education beyond the age of eighteen and for so long as his educational needs required. This was reversed by the IESC which ruled that the duty of the State was confined to children and the petitioner was only entitled to free primary education up to the age of 18 as appropriate to his needs as an autistic child. The significance of the case for present purposes lies in the court’s exploration of the “nature and concept” of primary education. As with the later cases, the court found that the meaning attached to the institutions and concepts referred to in the Constitution—marriage, gender, family unit and primary school education—did not remain fixed as determined in the religious culture of 1937 but must be redefined in the light of contemporary circumstances. Arguably any challenge to such concepts and institutions, framed within a system of specific religious beliefs, by those with contrary values and seeking to broaden the interpretation of those concepts and institutions must—if to varying degrees—constitute a conscientious objection.

Access Article 44.2.4 of the Constitution expressly provides for “the right of any child to attend a school receiving public money without attending religious instruction at that school”. The Equal Status Acts 2000-18, as amended by Part 3 of the Equality Act

147

[1998] 3 IR 321. Sinnott v. Minister for Education, [2001] 2 IR 545. 149 Zappone & Gilligan v. Revenue Commissioners & Ors [2006] IEHC 404. 150 Foy v. An t-Ard Chláraitheoir, [2007] IEHC 470. 148

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2004 and Part 14 of the Civil Law (Miscellaneous Provisions) Act 2008, provide the relevant legal framework. Under the Equal Status Act an educational establishment shall not discriminate in relation to: (a) the admission or the terms of conditions of admission of a person as a student to the establishment and (c) any other term or condition of participation in the establishment by a student.151 However, s.7(3) (c) allows schools including those in receipt of public funding, to discriminate in admissions on the grounds of religion where the objective is to provide education in an environment which promotes certain religious values. The above framework provided the context for the Stokes case which commenced in 2010, inistigated by the conscientious objection of the plaintiff to the admissions policy of the respondent school, and which was thoroughly examined: successful at the Equality Tribunal;152 reversed by the Circuit Court;153 appeal rejected by the High Court; and concluded with the IESC dismissal of the appeal in 2015.154 The contested issue concerned the school policy, not untypical of many others, that preference would be given to applicants whose parent had previously attended the school. The plaintiff protested that the rule, of general application, unfairly discriminated against members of the Travelling Community, placing them “at a particular disadvantage”, in the wording of s.3(1)(c) of the 2000 Act,—as it would in relation to ethnic minorities and immigrants—because of the disproportionate likelihood that such a parent would have been in a position to attend that school. The “particular disadvantage” point was acknowledged by the Circuit Court, though considered to be outweighed by other considerations, was refuted by the High Court but endorsed by the IESC which laid emphasis on the fact that the Travelling Community had ‘protected’ status under the 2000 Act. However the latter concluded that in this context the scale of the disadvantage incurred by the Travelling Community, relative to non-Travellers, was statistically uncertain and in this particular case remained unsubstantiated. That staff access can also give rise to conscientious objections was demonstrated in the 2010 McKeever case.155 A Catholic school, which had offered Ms McKeever, a member of the Church of Ireland, a permanent teaching post, withdrew the offer following a post-interview phone call in which she was questioned about not holding the ‘certificate in religious studies’—a compulsory requirement of the Irish Catholic Bishops’ Conference for teachers working in Catholic-managed primary schools. As these schools constitute almost all primary schools in the public sector, she protested that an inability to meet this requirement made it virtually impossible for her to gain

151

The Equal Status Acts 2000-2008, s.7(2). Stokes v. Christian Brothers High School, Clonmel, DEC-S2010-056. 153 Christian Brothers High School Clonmel v. Stokes [2011] IECC 1. 154 Stokes v. Christian Brothers High School, Clonmel & Anor., [2015] IESC 13. 155 McKeever v. Board of Management Knocktemple National School and the Department of Education, DEC-E2011-266. 152

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employment as a teacher.156 Her objection to being rejected on religion based grounds was upheld by the Equality Tribunal. Again, in the Mackeral case,157 it was the fact that religious beliefs were in play that made the protest of a part-time fire fighter and member of the Church of Ireland, a conscientious objection when he alleged that he had been discriminated against, harassed and victimised, and eventually fired on religious grounds. The Labour Court found that he had been unlawfully victimised. However, where staff conduct publicly breaches the religious ethos of their employer, as in Flynn v. Power,158 then they are unprotected as they bear responsibilty for having knowingly placed themselves in a position where accepting that ethos was part of their terms and conditions of employment (see, further, below at Sect. 8.5.1).

Religion Specific Clothing: Teachers Given the long established acceptance of nuns teaching in their religious habits, it is unsurprising that the issue of teachers from other faiths wearing religious clothing has not become problematic for the Irish public school system.

Religion Specific Clothing: Pupils In 2008 a school principal in Gorey was faced with a conscientious objection from a 14 year old pupil who objected to school uniform requirements which did not allow for the wearing of a hijab. The principal requested guidance and the Ministers for Education and for Integration issued a joint recommendation stating that ‘no school uniform policy should act in such a way that it, in effect, excludes students of a particular religious background from seeking enrolment or continuing their enrolment in a school’. Subsequently, the Catholic schools’ Joint Managerial Body issued further guidelines emphasising ‘accommodation and dialogue’ between schools and parents and advising that the hijab, but not the niqab, be accepted.

Prayers, Symbols and Religious Ceremonies Etc There is a long tradition of Catholic prayers, symbols and religious ceremonies— being integrated into the daily life of State schools.159 This has given rise to parental conscientious objections. One such representative case, which came before the

156

See, further, at: https://www.irishtimes.com/news/education/trainee-teachers-are-warned-careerprospects-depend-on-religious-faith-1.1776620. 157 Mackeral v. Monaghan County Council, DEC-E2011-266. 158 [1985] ILRM 336. See, also, in England, Berrisford v. Woodard Schools [1991] IRLR 247. 159 See, for example, Mawhinnwy (2007), pp. 379–403.

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Equality Tribunal in 2014, concerned the not untypical circumstances of a pupil whose class was preparing for First Communion: the parents asked if their son could sit out the preparations but were told by the Principal that if he was in school he had to participate; subsequently all pupils were required and expected to take part in choir practices for both Communion and Confirmation; those who questioned, or absented themselves, from any such Catholic specific observance were treated disparagingly by the principal. Curiously, this was a school established with a declared interdenominational ethos, to include those of the Roman Catholic and Church of Ireland faiths, where all faiths would be welcome. The Equality Tribunal found that the schoolboy had been discriminated against on religious grounds by his primary school.160 Moves towards ending the above acceptance of denominational practices in State schools began in 2020 with the issue of new regulations by the Department of Education. These state that—in respect of the 200 schools under the management of the State Education and Training Board—any displayed religious symbols “must echo the beliefs of the wider school community rather than one particular religion” to reflect this multi-denominational identity. They add that when religious symbols are displayed, there must be balance, such as displaying a Menorah for Hanukkah if there is also a Christmas nativity scene on display. School masses or other religious ceremonies are no longer mandatory. However, the regulations have a very limited application: there is a long way to go before the 3,241 national schools lose their religious trappings. In the meantime, the daily 30-minute religious instruction continues for all children in the public school system; excepting those whose conscientious objections (or those of their parents) require them to sit at the back of the class (which offers stigmatisation but not insulation as although conspicuously set apart they remain within hearing of the instruction).

SOGI Related Issues An almost exclusively denominational public school system is more susceptible than others to a conflation of SOGI and religious discriminatory attitudes. This would seem to have been the context in which a teacher, employed in a Church of Ireland primary school, took a conscientious objection to her principal’s derogatory comments regarding her son’s sexual orientation to the Equality Tribunal in 2016. The Tribunal upheld her complaint.161

160

See, further, at: http://www.equalitytribunal.ie/en/Cases/2014/January/DEC-S2014-001.html. See, further, at: https://www.thejournal.ie/teacher-to-be-compensated-after-principal-madecomments-about-gay-son-2531361-Jan2016/.

161

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The Department of Education and Skills has issued policy statements, and supported the guidance offered by voluntary groups,162 in relation to the importance of cultivating an LGBT friendly environment in public schools for staff and pupils.

5.8.3.2

Educational Content

In Campaign to Separate Church and State v. Minister for Education,163 the IESC found that parents had a constitutional right to have religious education provided in schools. The requirement to provide an ‘integrated curriculum’ in all Catholic schools ensures that religious ethos permeates all teaching. This has given rise to conscientious objections from some staff who claim that their right to freedom of thought, conscience and religion is being compromised. Interestingly, Walsh J has commented that “‘it is doubtful if any teacher can be permitted to refuse to teach [religion] simply because he or she does not believe it, as distinct from having a conscientious objection to teaching it”.164 A comment which would seem to support the legitimacy of concientious objections from teachers in such circumstances.

SOGI Related Curriculum Content State education, being faith based and very largely Catholic in nature, perpetuates a religious ethos which has difficulty in addressing SOGI related issues and accommodating LGBT perspectives.165 Moreover, the requirement to provide an ‘integrated curriculum’ in all Catholic schools ensures that religious ethos permeates all teaching which compromises the right of staff and pupils to both manifest and address SOGI issues. However, following the issue of a report by the Oireachtas education committee in 2018 recomending that “ethos can no longer be used as a barrier to the effective teaching of the RSE (Relationships and Sexuality Education) and SPHE (Social Personal and Health Education) curriculum, the Minister for Education and Skills has announced that changes will be made to the national curriculum to take into account SOGI issues. He also noted the existence of a considerable body of conscientious objectors, most notably from the Catholic schools, opposed to the introduction of such content to the school curriculum.166 Implementation of the Provision of Objective Sex Education Bill 2018, currently See, for example, ‘Being LGBT in School: A Resource for Post-Primary Schools to Prevent Homophobic and Transphobic Bullying and Support LGBT Students’, Glen, at: https://www. education.ie/en/publications/education-reports/being-lgbt-in-school.pdf. 163 Op cit. 164 Walsh (1988), p. 100 (cited by Whyte, G, 2010, op cit). 165 See, for example, Neary, A. and Cross, C., Exploring Gender Identity and Gender Norms in Primary Schools, at: http://www.teni.ie/attachments/6d5d22d4-801c-4f2d-b456-299291cc17de. PDF. 166 See, further, at: https://extra.ie/2020/07/08/must-see/reform-sex-education-curriculum-schools. 162

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before Dáil Éireann (third stage) and seemingly stalled, will give effect to these changes.

5.8.3.3

Faith Schools

The State public education system, as mentioned, is demonstrably faith based.167 Although State funded, education is in practice controlled by religious bodies— almost exclusively Roman Catholic—the lead role in shaping the ethos, values and beliefs of that system having been assumed by Church rather than State. Crowley v. Ireland,168 as reinforced by Campaign to Separate Church and State Ltd v. Minister for Education,169 clearly established that the State could support denominationally controlled education in discharging its obligation to provide for free primary education. The Equal Status Acts 2000-18, s.7(2) and s.7(3)(c), enable a school to refuse admittance to a pupil who is not of its denomination where it can prove that “the refusal is essential to maintain the ethos of the school”. The Education (Admission to Schools) Act 2018 has ameliorated the situation but this matter is likely to be an ongoing focus of conscientious objections.

5.8.3.4

Colleges/Universities

The traditional denominational divisions structuring the public education system are continued, though to a lesser degree, into third level education generally but more emphatically as regards training colleges. In McGrath and Ó Ruairc v. Trustees of Maynooth College170 the IESC considered the conscientious objection of plaintiffs who, on resigning from the priesthood, had been dismissed from their teaching posts. They claimed that this constituted ‘discrimination on grounds of religious status’ contrary to the directive in Article 44.2.3 that ‘the State shall not impose any disabilities or make any discrimination on the grounds of religious profession, belief or status’. The court, upholding the lawfulness of their dismissal, cited Article 44.2.5—giving every religious entity ‘the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes’—as providing the necessary authority for the college to so act.

167

Ibid, which clearly established that the State could support denominationally controlled education in discharging its obligation to provide for free primary education. 168 [1980] IR 102. Author acknowledges advice of Gerard Whyte on this matter (note to author, 17.02.17). 169 [1998] 3 IR 321, [1998] 2 ILRM 81. 170 [1979] ILRM 166.

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LGBT Related Issues In 2014–2017 proceedings were brought before the Workplace Relations Commission, (WRC) by 4 sibling students attending NUIG, based on alleged violations of their right to freedom of religious expression by the college authorities. All four had been active members of two college groups, the Christian Union and Life societies, which promoted “teachings of Christianity” and “sanctity of human life”. They conscientiously objected to college officials removing their posters opposing abortion and same-sex marriage and claimed harassment by those officials. Ultimately, the WRC ruled that the complaints were mostly time-barred and all others failed to satisfy the grounds for discrimination, harassment and/or victimisation on grounds of religion under the Equal Status Acts. The Equality (Miscellaneous Provisions) Act 2015, s.11, amended s.37(1) of the Employment Equality Act 1998 to remove the “chilling effect” of the latter on the career prospects of openly gay teachers employed in religious schools.

Affirmative Action Sections 24 and 33 of the Employment Equality Acts provide in general for positive discrimination, where justified by reasons that are cogent and substantive, but are unlikely to give rise to conscientious objections. In Kelly v. National University of Ireland,171 for example, the complainant protested at the university’s refusal to offer him a place on its postgraduate social work programme allegedly because a quota of places had been reserved for female candidates, some of whom were less qualified. The ensuing complicated proceedings concluded with a ruling that the complainant had failed to provide evidence to substantiate his claim. Section 23 of the Employment Equality Directive—2000/78/EC—provides a derogation that allows schools and other organisations with a religious ethos to be exempt from the provisions of equality legislation. The Irish legislature availed of this derogation—in s.37(1) of the Employment Equality Acts, 1998-2011—to permit affirmative action, or positive discrimination, in order to protect that ethos from being ‘undermined’.172 This provision allowed the many religious schools (and similarly run institutions, see further below) to apply religious criteria in the hiring, firing and working conditions of their staff when necessary to ‘give life and reality to the guarantee of free profession and practice of religion’.173 The constitutionality of such positive discrimination favouring religious organisations but breaching equality provisions—and possibly generating conscientious objections from others—was

171

Case C-104/10, [2012] IEHC 169. See, further, Fahie (2016), at: https://researchrepository.ucd.ie/bitstream/10197/7158/1/Fahie_ Paper.pdf. 173 See, further, Bolger, M. and Bruton, C., ‘Recommendation Paper’, at: https://www.ihrec.ie/app/ uploads/download/pdf/recommendation_paper_re_section_37_amendment.pdf. 172

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considered and endorsed by the IESC174 but subsequently amended by the Employment Equality Amendment Act 2015.

5.8.4

Public Defence and Security

In this as in other contexts, the recent expansive legal interpretation of ‘conscience’ has had a corresponding broadening effect upon the meaning and role of conscientious objection.

5.8.4.1

Military Issues

In Ireland there is no equivalent to the traditional narrative of conscientious objection to the bearing of arms because enlistment in the armed forces has always been on a voluntary basis. The absence of conscription makes conscientious objection a complete misnomer.

Service in the National Armed Forces Ireland has formally advised the Council of Europe that: ‘All members of the Defence Forces may voluntarily seek their discharge [. . .] without being required to state a particular reason’, adding that no cases of reasons of conscience have been recorded and that there were ‘no specific measures in place in the Defence Forces that relate to conscientious objectors’.175

Transgender Military Personnel Ireland has never formally banned trans persons from military service and there is no policy to introduce such a ban.

5.8.4.2

Prisoners and Asylum Seekers

While a prisoner with SOGI related issues is not exposed to the very real risk of persecution or death that accompanies a compulsorily returned Muslim asylum

174 In the Matter of Article 26 of the Constitution and In the Matter of the Employment Equality Bill, 1996 [1997] 2 I.R. 321. 175 See, Submission to the 111th Session of the Human Rights Committee: Ireland, (2014).

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seeker with similar issues, they are open to threats of violence and to a danger of selfharming.

Prisoners Prisoners and conscientious objection reached a nadir of sorts in Ireland with the death of Thomas Ashe—a republican leader on hunger strike—in Mountjoy Prison in 1917 following his forced feeding. In recent years this form of protest has become associated with inmates claiming particular vulnerability due to SOGI related identity issues that are not being appropriately catered for by the prison authorities, though in terms of scale the problem in this country is less pressing than elsewhere and therefore generates little related caselaw. An exception was Connolly v. Governor of Wheatfield Prison176 which concerned the intimidation and rape suffered by a gay prisoner in Mountjoy prison who was then transferred to Wheatfield where he was kept, 23 hours a day, in protective custody. After some months he sought to be released on the grounds that the undue duress of that regime breached his constitutional rights. Hogan J refused, explaining that the circumstances of the detention could not be said to violate the substance of the guarantee of personal integrity under Article 40.3.2. Arguably, the prisoner might have had a stronger case had he proceeded under the ‘freedom of conscience’ provision of Article 44.2.1 and asserted that the prison authorities were failing to recognise and protect his SOGI identity.

Asylum Seekers The legislative and regulatory framework for processing asylum applicants changed in 2015. The Refugee Act 1996 was then repealed and replaced by the International Protection Act 2015, which came into effect in 2017, and the Refugee Appeals Tribunal was replaced by the International Protection Appeals Tribunal which considers appeals from decisions taken by the International Protection Office, with a further right of appeal lying to the High Court. The 2015 Act, s.8, specifically recognises SOGI as grounds for persecution which warrant asylum. The judiciary have demonstrated a concern to establish guiding principles and in doing so have looked to Article 44.2.1 of the Constitution which provides protection explicitly for ‘freedom of conscience’ in addition to but distinct from ‘the free profession and practice of religion’, both being subject to public order and morality. As noted in AM v. Refugee Appeals Tribunal,177 the provision has for the most part

176

[2013] IEHC 334. [2014] IEHC 388. Author thanks Gerry Whyte for bringing this case to his attention (note to author, 12.07.21). 177

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dealt with freedom of conscience in the religious context.178 In that case the court held that s.2 of the Refugee Act 1996 was to be interpreted in accordance with the constitutional right to freedom of conscience and required that international protection should be accorded to two full conscientious objectors, brother and sister, who had a well-founded fear of persecution as they would be forced to participate in compulsory military service in Israel—should they be returned there—once they reached the age of eighteen years. The court considered that this interpretation was in accordance with established ECtHR caselaw. In SA (Algeria) v. Minister for Justice179 a gay man from Algeria had such a fear and claimed asylum on the basis of his sexual orientation. His application had been refused on the grounds that the extent of harrassment and discrimination he may face in Algeria would not amount to persecution. This was overturned in the High Court where Hogan J, noting that homosexuality was unlawful in Algeria, admonished the Tribunal with the warning that there was “no basis in law for saying that just because an applicant did not suffer persecution in the past that he or she cannot qualify as a refugee. What counts is whether there is a well-founded fear that this may occur were the claimant to be returned to their country of origin”.180 Again, in ETK v. Refugee Appeals Tribunal,181 the refusal of an asylum application from a lesbian woman from Malawi on grounds that focused on her political views as an LGBT activist and was overturned by Flaherty J because undue weight had been given to that ground and insufficient account taken of her sexual orientation and thus of her ‘membership of a particular social group’ which legislatively required specific attention. The Irish judiciary have found that asylum seekers with SOGI related concerns, which give rise to a well-founded fear of persecution, can find protection under the ‘freedom of conscience’ provision of Article 44.2.1.

5.8.5

Employment

The Employment Equality Acts 1998-2015 govern all significant stages of the employment process: access to employment; conditions of employment; training or experience for or in relation to employment; promotion or re-grading; and the classification of posts. They apply both to employers and employees, whether fulltime or part time. For present purposes, s.16 is particularly relevant:

178

Citing: McGee v. Attorney General [1974] I.R. 284 per Fitzgerald C.J., pp. 291–2 and Walsh J., p. 303; also Henchy J. at p. 326, it is difficult to contemplate a “freedom of conscience” excluding conscientious objection, which is in itself an obvious exercise of conscience rooted in religious or other moral or philosophical convictions. 179 [2012] IEHC 78. 180 Ibid, at para. 12. 181 [2016] IEHC 275.

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(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual— (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed.

This provision would seem to preclude the possibility of an employee being both a conscientious objector and remaining employed; providing an interesting contrast to the US ‘liberty laws’. However, as the Unfair Dismissal Acts 1977–2015, s.6(2) (a), declares that a dismissal may be regarded as unfair in circumstances where it results wholly or partially from ‘the religious or political opinions of the employee’, this would seem to allow for expressions of religion/belief/conscience.

5.8.5.1

Right of Employers to Hire and Fire

This right is largely governed by provisions in the Constitution, the Unfair Dismissals Act 1977, as amended, the Workplace Relations Act 2015, the Employment Equality Acts 1998-2015 as amended, and in various EU Directives.182

Religious Organisations Government funded religious organisations and those with a ‘religious ethos’, contracted to deliver public services in areas such as education, health and social care, have traditionally been entitled to rely on their exemption to the statutory prohibition on discriminatory practice to lawfully discriminate in relation to staffing and service access on the basis of religion, belief or sexual orientation. This privilege is now stated as follows in the Employment Equality Acts: 37.—(1)A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if— (a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or (b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

The Equality (Miscellaneous Provisions) Act 2015, s.11, amended the Employment Equality Act, but while it narrowed the exemption grounds for government funded denominational organizations it left intact the central premise. Such 182 Mainly, the General Framework (Council Directive 2000/78/EC) but also the Equal Pay Directive (75/117/EEC) and the Equal Treatment Directive (76/207/EEC).

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organisations are now only able to avail of the religious exemption where they can satisfy the three conditions of s.37(1(a)-(c). However, even as amended, the 1998 Act arguably still allows for a more generous interpretation of matters exempted from the religious discrimination prohibition than is permitted under Article 26 of the ICCPR and Article 4(2) of the Framework Directive.183 An archetypal example of that privilege was represented by the facts in Flynn v. Power184 which concerned an unmarried, female lay teacher employed in a secondary convent school for girls managed by an order of nuns. The teacher, found to be having a protracted affair with a married man—by whom she eventually became pregnant—to the concern of some parents, had her employment terminated on the grounds that her conduct was fundamentally inconsistent with her position as a teacher in such a school. Her complaint of unfair dismissal rested on an assertion— essentially a conscientious objection—that she was being penalised, not because she had breached her terms of employment, but because her private life did not conform to the religious beliefs of her employers. In dismissing her claim, the court distinguished between religious and secular schools and quoted with approval the following test applied by the SCC in the not dissimilar Canadian case of Caldwell185 (see, further, Sect. 7.8.5.1): ‘Is the requirement of religious conformance by Roman Catholic teachers, objectively viewed, reasonably necessary to assure the accomplishment of the objectives of the Church in operating a Roman Catholic school with its distinctive characteristics for the purpose of providing a Roman Catholic education for its students?’.186 The Irish court, like the Canadian, found in the affirmative and held the dismissal justifiable on the grounds of the particular effect her conduct had on the Catholic school, its pupils and on the reputation of the school in the community. The religious exemption was also challenged in Re Article 26 and the Employment Equality Bill 1996.187 The IESC then held that it was constitutionally permissible to discriminate on grounds of religious profession, belief or status—when hiring or firing staff and other such matters—if this is necessary to ‘give life and reality’ to the constitutional guarantee of freedom of religion.188 Two years later, in Greally v. Minister for Education (No 2),189 Geoghegan J upheld the constitutionality of a recruitment system for secondary school teachers that gave priority to the employment of teachers who had experience teaching in Catholic schools. In both

See, for example, UN HRC, ‘Concluding Observations on Ireland’s Second Periodic Report under the International Covenant on Civil and Political Rights’. 184 [1985] IEHC 1. 185 Re Caldwell and Stuart (1985) 15 DLR (4th) 1. 186 Ibid, per McIntyre J., at p. 18. 187 [1997] 2 IR 32. 188 The 1996 Bill was declared unconstitutional on other grounds but s.37(1) of the 1998 Act, its replacement, virtually replicates its predecessor. 189 [1999] 1 IR 1. See, also, O’Shiel v. Minister for Education [1999] 2 IR 321. 183

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cases the rulings laid the ground for conscientious objections from those disadvantaged by such explicit privileging on grounds of religion.

Secular Organisations Article 44.2.3 prohibits the State from imposing any disabilities or making any discrimination on the ground of religious profession, belief or status190 but in Mulloy v. Minister for Education191 it was found to have done so. The plaintiff teacher, a member of a holy order, failed in his attempt to claim a State increment to his salary—awarded on the basis of service ‘in certain under-developed countries on the continent of Africa’—as it was restricted to lay teachers. His objection to a State, faith based award that excluded him precisely because of his faith—and thus could reasonably be construed as conscientious—was unanimously upheld by the IESC.192 Again, in 2014, the appeal lodged by a civil engineer dismissed by a County Council for his persistent proselytising or “inappropriate promotion of his faith”, following several warnings from management and complaints from his work colleagues, could be similarly construed. The appellant, a ‘born-again Christian’, claimed that his religion required him to speak to people about Jesus and to share the Gospel but that he would never inappropriately force his religious beliefs on anyone. He said that not mentioning the name of Jesus Christ in the office was a great difficulty for him. While other subjects could be discussed, such as sports and current affairs, if he mentioned “the most important being to him in his life” he faced ridicule and consequently had become marginalised in the office. The Equality Tribunal upheld the appeal, finding that the Council had discriminated against the appellant on religious grounds.193

SOGI Related Issues Usually SOGI related issues are litigated as straightforward allegegations of sexual discrimination.194 Only when an additional dimension of beliefs is present and it is

190

In Fitzgerald v. Minister for Community, Equality and Gaeltacht Affairs, [2011] IEHC 180 the High Court confirmed that the plaintiff had no locus standi to claim discrimination on the basis of his being a member of the farming community. 191 [1975] IR 88. 192 An objection supported, equally conscientiously, by Atheist Ireland. See, further, at: https:// atheist.ie/2012/12/atheist-ireland-asks-president-to-test-constitutionality-of-new-marriage-registra tion-law/. 193 See, further, at: https://www.thejournal.ie/nui-galway-lecturer-discrimination-1521678Jun2014/. 194 See, for example, An Employee v. A Credit Union, DEC-E2012-190, (2013) and Hannon v. First Direct Logistics, EE/2012/019, (2014).

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clear that the complaint is motivated by those beliefs can that protest be defined as a conscientious objection. In A Teacher v. A National School195 the Equality Tribunal found in favour of the complainant who objected to the discriminatory attitudes she alleged she had encountered during the course of her interview for the post of Principal in the national school where she had been employed as a deputy Principal for 8 years. The Equality Officer found that Sr B., for the interview panel, had asked the question “What about the homos?” to the complainant, who was not sure whether she was being asked about her own sexual orientation. The Officer was less uncertain: “it is precisely because the interview board did not know Ms A.’s sexual orientation, that I interpret Sr B.’s question as an attempt to ascertain the complainant’s sexual orientation without asking the question directly”.196 The Tribunal found that Sr B.’s question was unlawful on the ground of sexual orientation and held that the complainant had been discriminated against on the grounds of her religion, sexual orientation and age, contrary to s.6(2)(d), (e) and (f) of the Employment Equality Acts 1998 to 2011, but its decision was overturned on appeal to the Labour Court which did not find corroboration for the alleged reference to “homos”. The outcome does not detract from the fact that, at face value,197 this was a conscientious objection: generated, ostensibly, by the offence caused to the claimant by a challenge from the interviewer; using her status as such and as a representative of a religious order; to test the claimant by presenting her with a SOGI related query; the answer to which would require her to disclose her commitment to a religiously inspired set of values, if she was to be the successful candidate.

5.8.5.2

The Workplace

While it is the employers’ duty to accommodate differences of religion, belief, or matters of conscience in the workplace, the obligation is one that is also shared among employees: there is an acceptance that a degree of give-and-take, compatible with efficient working arrangements, is required; subject to reasonableness and avoidance of undue hardship on the employer. In Tavoraite v. Dunnes Stores198 a Muslim employee had her employment terminated after two years of warnings that, while at work, she was required to conform to the company’s dress code and desist from wearing a hijab, despite her protests that this was necessitated by her religious beliefs. The Tribunal hearing ended when the plaintiff reached a settlement with the company.

195

Equality Tribunal, DEC-E2014-097, (2014). Ibid, at para. 4.21. 197 See, further, at: https://www.thejournal.ie/equality-tribunal-ruling-1889466-Jan2015/. 198 Unreported, Employment Appeals Tribunal, Dublin, November 13, 2012. 196

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Undue Hardship The law is clear that an employee’s beliefs, religious or otherwise, should be accommodated by their employer unless to do so would impose undue hardship on the employer’s business. The need to respect this balance was demonstrated in the decision of Clarke J in Merriman v. St. James’ Hospital199 when the judge ordered the reinstatement of a hospital worker who had been dismissed for refusing, on grounds of conscience, to bring a crucifix and candle to a dying patient. Clarke J ruled that the employee was required to fulfil the terms of her contract, including assisting patients with religious rites and services, but added that “she need not participate in any religious ceremony or rite; and allowing that her particular scruple as to the actual erection of crucifix or candles should be respected and this be dispensed with in her case”. This case may be distinguished from others mentioned above in two respects: the firing of the employee had been for breach of a duty that could be defined neither as a bona fide job requirement nor of a nature entitling the employing body to avail of the religious exemption; but also it would seem to represent a judicial endorsement of an employee’s right to conscientiously object in such circumstances.

Sincerity of Belief Cultural dissonance can obscure an appreciation of the importance that someone from a different culture may attach to their particular religious rituals. So, in 2017, the WRC ruled that a Hindu chef had been unfairly dismissed when he returned to work after disappearing for six weeks on ‘prayer leave’ for his deceased father. It accepted the chef’s sincerity when he conscientiously objected to the employer imposing constraints on his need to manifest his religious beliefs in accordance with traditional custom. In response to the employer’s defence that such cultural practices did not exist in Ireland the regulator commented that this was “an unusual stance for an employer in a hopefully pluralistic society”.

5.8.6

Commercial Services

The Equal Status Acts 2000-2018 prohibit discrimination in the provision of goods and services—or commercial services—across all sectors and the Workplace Relations Commission rules on complaints arising in that context with a right of appeal to the Circuit court. Section 5(1) of the Equal Status Acts provides that a “person shall not discriminate in disposing of goods to the public generally or a section of the

199 UD 365/1986; Circuit Court unreported, 24 November 1986, Clarke J. See generally Redmond (1999), p. 274.

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public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” Certain exceptions are set out in s.5(2).

5.8.6.1

Goods and Services

There are very few reported cases that could be reasonably construed as having a conscientious objection dimension, as opposed to being concerned with a straightforward allegation of discrimination. The early and leading case of Quinn’s Supermarket v. Attorney General200 illustrates the blurring of these boundaries. This concerned the plaintiff company’s objection to a Ministerial order limiting the days for sale of meat products in Dublin but specifically exempting the sale of kosher meat from those restrictions. The company, facing prosecution for breaching the order, defended its actions by protesting that the order was unconstitutional, claiming that in effect it mandated the discriminatory sale of goods on religious grounds contrary to Article 44.2.3. Perhaps a bit of a stretch, but the plaintiff company seemed to be contriving to clothe a commercial motive in the garb of conscientiousness. This was rejected by the IESC. It found that the special exemption for kosher meat from the Sunday trading laws was not discriminatory against non-Jewish shop owners and upheld the exemption on the basis that it was necessary to protect the freedom of religion of the Jewish community. However, it considered the latitude granted to the sale of kosher meat to be overly generous, and on that basis held the order to be invalid. Following the publication of the Adoption (Amendment) Act 2016, same-sex couples in Ireland have, for the first time, been able to jointly adopt children and step-children. This is likely to trigger the same conscientious objections from Irish Catholic adoption agencies as it has for their counterparts in the UK, the U.S. and elsewhere.

5.8.6.2

Religious Owners of Commercial Businesses

In Brennan v. Noel Tuite t/a Beulah Print201 the respondent, a provider of printing services and a committed Christian, refused to print invitations in respect of the complainant’s civil partnership. He conscientiously objected because he did not believe in or support gay marriage and, in the circumstances, could not provide the personal and bespoke service required for wedding invitations. The Tribunal found that the complainant was discriminated against by the respondent on grounds of sexual orientation but was not discriminated against on the grounds of religion. In keeping with similar cases in other Part III jurisdictions, the respondent’s beliefs

200 201

[1972] IR 1. DEC-S2018-020, (2018).

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were found to provide legitimate grounds for rebutting a charge of religious discrimination.202

5.9

Conclusion

By the centennial of the founding of the State Ireland had been transformed into a fairly typical modern developed nation. For the most part this transition was compressed into the decades bridging the twentieth and twenty-first centuries and was greatly facilitated by the persistent pressure from those who conscientiously objected to the constraints imposed by a denominationally ordered society. Unquestionably, Ireland’s membership of the EU and exposure to the rulings of the ECtHR was also hugely influential.

References Bozzola E et al (2018) Mandatory vaccinations in European countries, undocumented information, false news and the impact on vaccination uptake: the position of the Italian pediatric society. Ital J Pediatr, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6001041/ Casey C et al (2021) Ireland’s Emergency Powers During the Covid-19 Pandemic. The Irish Human Rights and Equality Commission, p v, https://www.ihrec.ie/app/uploads/2021/02/IrelandsEmergency-Powers-During-the-Covid-19-Pandemic-25022021.pdf Casey J (2000) Constitutional law in Ireland, 3rd edn. Thomson & Maxwell, p 698 Casey M (2018) Radical politics and gay activism in the Republic of Ireland, 1974–1990. Irish Stud Rev 26(2):217–236 Coen M (2008) Religious ethos and employment equality: a comparative Irish perspective. Legal Stud 28(3):452–474 Donnelly M, Murray C (2020) Abortion care in Ireland: developing legal and ethical frameworks for conscientious provision. Gynecol Obstetr 148(1):127–132 Fahie D (2016) ‘Spectacularly Exposed and Vulnerable’ How Irish Equality Legislation Subverted the Personal and Professional Security of Lesbian, Gay and Bisexual Teachers. Sage Publications Flynn G, Hogan J, Feeny S (2019) Whistleblowing in the Irish military: the cost of exposing bullying and sexual harassment. J Military Ethics 18(2):129–144 Legg A (2012) The margin of appreciation in international human rights law. OUP, Oxford Mawhinnwy A (2007) Freedom of religion in the Irish primary school system: a failure to protect human rights? Legal Stud 27(3):379–403 Milotte M (2014) Banished babies: the secret history of Ireland’s baby export business. New Island Press Murphy JFA (2006) The Madden Report on post mortem practice and procedures. Irish Med J 99(1) Redmond M (1999) Dismissal law in Ireland, 2nd edn. Butterworths, Dublin, p 274 Ryan P (2013) The Pursuit of Gay and Lesbian Sexual Citizenship Rights, 1980-2011. In: Leane M, Kiely E (eds) Sexualities and Irish society: a reader. Orpen Press, Dublin, pp 101–126

202

See, for example, Lee v. and Ashers Baking Co Ltd and others, [2018] UKSC 49.

References

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Szydlowski M (2016) The rights to health and health care of vulnerable populations: reducing the existing barriers to health equity experienced by transgender people in Ireland. J Human Rights Pract 8(2):239–263 Wallace C (2014) Feverish activity: Dublin City Council and the smallpox outbreak of 1902–3. In: Lucey S, Crossman V (eds) Healthcare in Ireland and Britain 1850-1970: voluntary, regional and comparative perspectives. University of London Press, pp 119–216 Walsh J (1988) The constitution and constitutional rights. In: Litton F (ed) The Constitution of Ireland 1937–1987. IPA, Dublin, p 100 Whyte G (1997) Religion and the Irish constitution. J Marshall Law Rev 30(3/4):725–746 Whyte G (2010) Religion and Education – the Irish Constitution. Paper presented at the TCD/IHRC Conference on Religion and Education: A Human Rights Perspective, (27th November 2010)

Chapter 6

United States of America

Abstract This chapter applies the same rough template of themes as in all Part III chapters. Beginning with a brief overview of the background leading up to the current social context, it reviews the nation’s reputation for managing dissent and diversity. It considers the most relevant principles, doctrines and definitions before tracing the successive stages in the development of law and policy relating to conscientious objection. This leads to an outline of the present international and domestic legal framework and the related court system. The heart of the chapter then examines contemporary case law: first as regards conscientious objection in relation to the fundamental rights to the freedom of expression, association/assembly and religion/belief; then as regards the role of that principle in the context of public health, public social care, public education, employment and commercial services. The chapter concludes with reflections on some of the more characteristic aspects of the law relating to conscientious objection in the U.S.

6.1

Introduction

In keeping with other Part III chapters, this one applies the same rough template of themes. Beginning with a brief overview of the background leading up to the current social context, it reviews the nation’s reputation for managing dissent and diversity. It considers the most relevant principles, doctrines and definitions before tracing the successive stages in the development of law and policy relating to conscientious objection. This leads to an outline of the present international and domestic legal framework and the related court system. The heart of the chapter then examines contemporary case law: first as regards conscientious objection in relation to the fundamental rights to the freedom of expression, association/assembly and religion/ belief; then as regards the role of that principle in the context of public health, public social care, public education, employment and commercial services. The chapter concludes with reflections on some of the more characteristic aspects of the law relating to conscientious objection in the U.S.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_6

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United States of America

Principles, Doctrines and Definitions

In the U.S. the separation of Church and State is the governing principle which, as Habermas points out, “demands that the institution of the State operates with strict impartiality.”1 This and other doctrines help define the meaning of ‘conscience’ and the constraints on the role of the related ‘objector’.

6.2.1

Religion, Belief and Matters of Conscience

In the U.S. as elsewhere in the developed world, the definition of ‘religion’ now extends well beyond the traditional institutional religions to include many different forms of ‘belief’. The USSC has determined that for constitutional purposes a ‘religious’ belief or practice can be defined as “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living”,2 which includes “all those whose consciences . . . would give them no rest or peace.”3 It has consistently held that: exemptions reserved only for religious objectors violate the Establishment Clause, which prohibits government from favouring religion over irreligion; a “merely personal moral code” which is “in no way related to a Supreme Being”4 must be excluded; but sincere non-believers should be accommodated.5 In so doing, and to the extent that the new beliefs have gained legal recognition, the platform supporting conscience based objections has—arguably—been correspondingly extended.

6.2.1.1

Traditional Religions

Half a century has elapsed since the USSC determined in Torcaso v. Watkins6 that an exclusively theistic interpretation of ‘religion’ was no longer sustainable, as reinforced in United States v. Seeger7 and confirmed, shortly after, in U.S. v. Welsh.8 The latter concerned a Kantian philosophy student who expressly denied belief in

1

Habermas (2006), pp. 1–25. Wisconsin v. Yoder, 406 US 205, 215-6, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1971). 3 Welsh v. United States, 398 U.S. 333, 344 (1970). 4 United States v. Seeger, 380 U.S. 163, 173, 186, 85 S. Ct. 850, 858, 864, 13 L. Ed. 2d 733 (1965). 5 Torcaso v. Watkins, 367 U.S. 488, 496 (1961) (requiring atheist to affirm belief in God violates his “freedom of belief and religion”); cf. EEOC v. Townley Eng. & Mfg. Co., 859 F.2d 610, 613 (9th Cir. 1988) (requiring atheist employee to attend religious services at work discriminates against him on basis of religion), cert. denied, 109 S. Ct. 1527 (1989). As cited by Laycock (1990), p. 1002. 6 367 U.S. 488 (1961). 7 380 U.S. 163, 173, 186, 85 S. Ct. 850, 858, 864, 13 L. Ed. 2d 733 (1965). 8 Op cit. 2

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God and opposed war on the basis of the Categorical Imperative which was held to be within the “religious” exemption because his belief functioned the same in his life and religion does in the life of believers.9 The USSC subsequently added, in Wisconsin v. Yoder,10 that for constitutional purposes a ‘religious’ belief or practice is to be considered as “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living”.11 Arguably, a defining characteristic of a ‘religion’, differentiating it from philosophy and other forms of belief, is a conviction in the existence of a supernatural dimension. While conscientious objection was initially grounded in religion12— and in the corollary that, ultimately, there would be accountability in a supernatural dimension for conduct claimed to be justified by personal conscience—this linkage weakened as ‘religion’ became progressively attenuated and diffused: displaced by the new forms of belief now recognised in law; and no longer anchored on an accepted code of morality as sanctioned by religion. Extending ‘conscience’ from ‘religion’ to ‘belief’ has correspondingly extended the range of conduct for which exemption may reasonably be claimed.

6.2.1.2

Contemporary Belief Systems and Matters of Conscience

Rejecting an exclusively theistic definition of ‘religion’, Black J in Torcaso v. Watkins13 then enumerated a list of non-theistic beliefs that could accompany the orthodox institutional religions, including “Buddhism, Taoism, Ethical Culture, Secular Humanism and others”. Subsequently, as elsewhere in the developed world, the definition of ‘religion’ has extended to include many different forms of ‘belief’. It has, for example, been decided at federal level—in Chenzira v. Cincinnati Children’s Hospital Medical Center14—that veganism could meet the definition because “religious practices . . . include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views.”15 It was enough that the plaintiff sincerely, and with conviction, believed as she did and did so with a rigour typical of a traditional religious adherent; a rationale that imported a subjective interpretation of belief as a crucial—if insufficient—determinant of what constitutes a ‘religious belief’.

9

Author acknowledges advice from Fred Gedicks on this matter (note to author: 02.10.21). 406 U.S. 205, 215-6, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1971). 11 See, also, Thomas v. Review Board of the Indiana Employment Security Division, 450 US 707 (1981) and Frazee v. Ill. Dept. of Empl. Secur., 489 US 829 (1989). 12 As Burger CJ declared “to have the protection of the Religion Clauses, the claims must be rooted in religious belief”: Wisconsin v. Yoder [I972] 406 U.S. 205, at 215. 13 367 U.S. 488 (1961). 14 No. 1:11-CV-00917 (S.D. Ohio 2012). 15 Federal regulation 29 C.F.R. § 1605.1. 10

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Legitimacy and Cogency The judiciary have long deliberated on what might constitute ‘religion’ or ‘belief’16 while also protesting that “repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”.17 In United States v. Seeger,18 the court defined “religious belief” as one that included “a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption”. While the USSC, in Welsh v. United States,19 held that the definition of “religion” was not dependent on a belief in a “Supreme Being” and explicitly excluded from that definition those with “essentially political, sociological, or philosophical views or a merely personal moral code,” it acknowledged that:20 If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual ‘a place parallel to that filled by God’ in traditionally religious persons.

In Wooley v. Maynard21 ‘belief’ was held to include mere written or verbal affirmations or other manifestations of what one does (or does not) believe. In United States v. Meyers,22 as Shah points out, the court found that religious organizations generally exhibit: ultimate ideas, metaphysical beliefs, a moral or ethical system, comprehensiveness of beliefs, and the accoutrements of religion.23 They have been clear that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”.24 In Peterson v. Wilmur Communications, Inc.,25 the plaintiff’s white supremacist belief system called “Creativity” was deemed to be a religion within the meaning of Title VII because, as in Welsh, it “functions as religion in [his] life”. In Brown v. Pena,26 the court cited three factors to determine whether a belief is religious:27 (1) whether the belief is based on

16

Fellowship of Humanity v. County of Alameda,153 Cal. App. 2d 673 (1957). See, also, Torcaso v. Watkins, 367 US 488 (1961). 17 Hobby Lobby (n 31) 37–38. Citing Thomas v. Review Bd of Indiana Employment Security Div (1981) 450 U.S. 707 (USSC) 716. 18 Op cit. 19 Op cit. 20 Op cit, paras. 339–340. 21 430 U.S. 705, 713 (1977). See, also, Malnak v. Yogi (1979), 592 F (2d) 197. 22 906 F. Supp. 1494, 1501 (D. Wyo. 1995). 23 Shah, A., ‘The Impact of Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal’, 546 U.S. 418 (2006) at: http://www.lawandreligion.com/sites/law-religion/files/Impact-of-Gonza les-Shah.pdfub. 24 Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S 707, (1981), p. 714. 25 205 F. Supp. 2d 1014 (E.D. Wis. 2002). 26 441 F.Supp. 1382 (D.C. Fla. 1997), aff’d, 589 F.2d 1113 (5th Cir. 1979). 27 See, Brown v. Dade Christian Schools, Inc., 556 F.2d 310, 324 (5th Cir. 1977) (dissent).

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a theory of “man’s nature or his place in the Universe;” (2) which is not merely a personal preference but has an institutional quality about it; and (3) which is sincere. If, in Welsh v. United States28 the right to believe is asserted to be unrestrained, its exercise must always be balanced against any impact this may have on the rights of others. That tension becomes particularly fraught when such ‘others’ protest that their rights to equal and non-discriminatory treatment are being violated by a particular manifestation of religion or belief. Constraints also arise from weaknesses in the beliefs relied upon by the believer. Unique personal moral preferences cannot be characterized as religious beliefs. Neither, as was demonstrated in Cloutier v. Costco Wholesale Corp.,29 can body piercings; it was then argued, unsuccessfully, that these were a manifestation of beliefs required by the ‘Church of Body Modification’. In Brown v. Pena,30 the court summarily rejected a plaintiff’s religious discrimination claim based upon his “personal religious creed” that Kozy Kitten People/Cat Food contributed significantly to his state of well being, and thus, to his overall work performance by increasing his energy. Again, in Swartzentruber v. Gunite Corp.,31 it was held that membership of the Ku Klux Klan (KKK) did not qualify as religious belief; the employee had suffered harassment not because of his religious beliefs but because of his self- identification as a member of the KKK which is “political and social in nature”.32 Nonetheless, when in 2018 the IRS formally recognised the Pussy Church of Modern Witchcraft33—a lesbian witchcraft organisation, subscribing to the belief that trans women are not authentically female—as a ‘church’ and a s.501(c)(3) organization with an entitlement to tax exemption privileges, it seemed to some that a bridge of sorts had been crossed. Beliefs of Indigenous People The surviving cultural identity and beliefs of the American Indian/Alaska Native (AI/AN) tribes center on the worship of spirits associated with nature, the landscape, the seasons and involve ceremonial dances, rituals and often include animals. Customarily, religious beliefs are expressed and modes of group worship are led by a shaman or medicine man. It has been said that:34 American Indian values lean toward a cosmic identity, a harmony of the individual with the tribe, the tribe with the land, and the land with the spirit of the universe. Central to this quest for harmony is a sense of constancy – the timelessness and predictability of nature as the foundation of existence. This cycle symbolizes eternity- one reality, and it transcends everything in its absoluteness, giving respect to everything.

28

Op cit. 390 F.3d 126 (1st Cir. 2004). 30 441 F.Supp. 1382 (D.C. Fla. 1997), aff’d, 589 F.2d 1113 (5th Cir. 1979). 31 99 F. Supp. 2d 976 (N.D. Ind. 2000). 32 See, Slater v. King Soopers, Inc., 809 F. Supp. 809 (D. Colo. 1992). 33 See, further, at: https://www.forbes.com/sites/peterjreilly/2018/08/03/lesbians-want-a-church-oftheir-own-and-irs-approves/?sh¼200f914c21c2. 34 Herring (1989), pp. 4–13. 29

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There is no statutory encoding of their distinctive beliefs but there are statutory provisions, such as those in the Native American Free Exercise of Religion Act 1993, that declare the need to identify, evaluate, and protect significant cultural sites and to consult with American Indian and Alaska Native peoples when State intervention is planned.35

6.2.2

State Neutrality

The genesis of this principle lies in the anti-Establishment clause of the First Amendment and its declaration that “Congress shall make no law respecting an establishment of religion” as confirmed by decisions of the USSC in a wide range of cases including Everson,36 Zorach,37 and as emphasised by O’Scannlain J in World Vision.38 While traditionally upheld in the U.S., its exercise has always been subject to the Free Exercise clause which “does not prohibit governments from validly regulating religious conduct”.39 Arguably the principle of State neutrality towards religion has become so compromised in recent years as to become a complete misnomer.40 Partly this is due to the legacy, and continuing contribution, made by religious organisations to contemporary public service infrastructure: as the Aspen Institute has noted “religiously affiliated colleges and universities, social service agencies, hospitals, and other institutions have been central actors in government-financed human service activities almost from the founding of the republic . . .”.41 Also, in part, it has been undercut by wide-ranging judicial interpretations of the Free Exercise clause in cases such as Hobby Lobby,42 Hosana Tabor43 and as challenged more recently in Trinity

35

See, further, Steele and Barclay (2021), p. 1294. Everson v. Board of Education 330 U.S. 1 (1947). Also, see: Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 305 (1963); Agostini v. Felton 521 U.S. 203 (1997) and the ‘Lemon test’ as originating in Lemon v. Kurtzman 403 U.S. 602 (1971) and applied in Mitchell v. Helms 530 U.S. 793, 120 S. Ct. 2530 (2000); Americans United For Separation of Church and State v. Prison Fellowship Ministries 551 U.S. 587 (2007). 37 Zorach v. Clauson, 343 U.S. 306 (1952). 38 Spencer v. World Vision, Inc., 619 F.3d 1109 (9th Cir. 2010). 39 Grace United Methodist Church v. City of Cheyenne, 451 F.3d, 643, 649 (10th Cir. 2006). 40 In fact there is a narrative that traces a State/Church complict relationship back through the Bush and Reagan Administrations; a relationship compounded by Administration partisan nominations to the USSC. 41 Aspen Institute, Religious Organizations and Government, 2001, p. 5, further, at: http://www. aspeninstitute.org/sites/default/files/content/docs/RELIGION.PDF. 42 Burwell v. Hobby Lobby, 573 U.S. 134 S.Ct. 2751 (2014). 43 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. _ (2012). 36

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Lutheran,44 Bryant45 and Masterpiece.46 Mostly, however, it is due to the concerted efforts of the Trump Administration together with, as Linda Greenhouse puts it, a USSC “that devises off-ramps from civil society for those with religious objections to following the nondiscrimination principles intended to bind us all”.47 That Administration, unlike its predecessor, demonstrated a clarity of political purpose in relation to matters of religion and belief and one antithetical to State neutrality. This was initially evidenced in May 2017 when President Trump issued a presidential executive order declaring: “the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans’ first freedom”. It was taken a stage further in January 2018 with the White House Faith and Opportunity Initiative and the launch of the Conscience and Religious Freedom Division, established within the Department of Health and Human Services (DHHS,) to protect those with moral and religious convictions.48 In July 2018 the Attorney General announced the creation of a ‘religious liberty task force’ under the auspices of the Department of Justice to implement the executive order and in 2019 the DHHS issued its Conscience Protection Rule.49 All of which signalled that conscientious objections—at least those grounded in traditional Christian beliefs—to issues non-compliant with those beliefs would in future be assured of a level federal support beyond that to be expected from a neutral State.

6.2.2.1

Preferencing Christianity and the Christian Cultural Heritage

State support for traditional, conservative, and essentially Christian religious values, particularly as represented by the evangelical Christian constituency, was evident in measures adopted by the Trump Administration such as the appointment of conservative judges to the USSC, the restrictions imposed upon Muslim immigrants, and it could perhaps be inferred from its leadership of coalition forces in continued warfare directed towards Muslim countries. It was demonstrated also by government pushback on issues perceived as threatening Christian values. So the gains made in recent years by the LGBT community were being eroded, specifically by imposing constraints on the trans sector, including: the directive that prisoners should be housed in accordance with their gender at birth rather than as self-identified or as surgically determined; that trans persons should not be enlisted or permitted to serve

Trinity Lutheran v. Corner 582 U.S. (2017). Also see Locke v. Davey, 540 U.S. 712 and the “play in the joints” between the Establishment and Free Exercise Clauses. 45 Barber v. Bryant 17-547, and Campaign for Southern Equality v. Bryant, 17-642. 46 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 US (2018). 47 Greenhouse (2020), p. 8. 48 Department of Health and Human Services, 83 FR 2802, ‘Statement of Organization, Functions, and Delegations of Authority’, (January 19, 2018) at: https://www.gpo.gov/fdsys/pkg/FR-2018-0119/pdf/2018-00820.pdf. 49 See, further, at: https://www.hhs.gov/sites/default/files/final-conscience-rule.pdf. 44

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in the national armed forces; encouragement for state repeal of bathroom laws that allowed trans persons to use facilities that corresponded with their declared gender identity; and encouragement also for the introduction of state ‘religious liberty laws’ which excused public health officials from service provision where involvement might compromise their religious beliefs, including not approving same sex couples as adopters (see, further, below Sect. 8.2.1). There is now a considerable body of evidence testifying to a continuing State commitment to sustaining and even re-asserting its Christian, essentially Protestant, cultural heritage (see, also, Sect. 1.2.2.1). It is proclaimed on national coinage—‘In God we trust’—in the Pledge of Allegiance—‘one nation under God’ and is demonstrated in the homage paid to Christianity on State ceremonial occasions. It has been evident in the decades of School Prayer cases50 and more recently in Trinity Lutheran51 when a conscientiously objecting Christian organisation (the Alliance Defending Freedom) successfully appealed a decision to deprive a religious school of State funding needed to resurface the school playground. It has become apparent in the current federal and state resistance to the legislative initiatives of the previous Administration that are perceived as having undermined traditional Christian values.52 All of which brings into question whether the assurance offered by the USSC some 30 years ago—the prohibition against governmental endorsement of religion “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favoured or preferred”53—remains credible. The Culture Wars Probably first recognised as a sociological phenomenon in the USA in the early 1960s,54 the culture wars were presciently viewed55 as a source of growing social and political polarisation. The dividing line in this clash of values can be seen as one of morality that initially focused on issues such as gun control, the death penalty and racial discrimination, before extending from the latter into sex related matters such as abortion and homosexuality, but it has probably always been drawn between those with traditional religious values and those of a more secular disposition. The list of sex related issues generating taboos and moral confrontation over the years is long (e.g. prostitution, single mothers, adultery, homosexuality) but currently is mainly

50

See: Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992); Wallace v. Jaffree, 472 U.S. 38 (1985); Sch. Dist. v. Schempp, op cit; and Engel v. Vitale, 370 U.S. 421 (1962). 51 Trinity Lutheran v. Corner 582 U.S. (2017). 52 Fred Gedicks comments that “this is supported almost exclusively by cultural conservatives; cultural liberals are either opposed or indifferent to the elimination of these symbols and expressions” (note to author: 02.10.21). 53 County of Allegheny v. American Civil Liberties Union (Greater Pittsburgh Chapter), 492 U.S. 573 (1989); but see also Town of Greece v. Galloway, 134 S. Ct. 1811 (2014). 54 See, Hunter (1991). 55 See, for example: Abramowitz (2012), Fiorina (2010), and Dahl (2001).

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focused on abortion, gay marriage, other LGBT issues and transgender matters. The now ever extending spectrum of moral imperatives—including genetic modification, embryo research, gene patenting, IVF, sterilisation, assisted death and many others—are all clearly recognisable as pressing social issues that variously contribute to the culture wars. This deeply rooted confrontation has been further complicated by social divisions over the proposed Equal Rights Amendment and by a resurgent evangelical Christian engagement in that debate and in public health issues: arguably, the Trump Administration dalliance with that quarter of the American population that adheres to evangelical Christianity, constituted a political force without precedent for some generations; and one with policies at variance with the principle of State neutrality. This now more obviously fractured society has been in the process of becoming so for some decades and its culture wars have potential to generate endless conscientious objection issues. Indigenous People The 6.6 million Indigenous people in the United States, or 2% of the total population, are mainly American Indian and Alaska Native (AI/AN). In May 2016, 567 tribal entities were federally recognised, and most of these have recognised national homelands. In 2010, the United States announced that it would support the UN Declaration on the Rights of Indigenous Peoples, having voted against it in 2007, but it has not yet ratified ILO Convention 169 which deals specifically with the rights of Indigenous and tribal peoples.

6.2.2.2

The Religious Exemption

The ‘exemption doctrine’, variously providing a platform or a target for conscientious objectors, emerged in the 1960s to grant special protection for religion under the Free Exercise Clause, as this seemed a permissible way of balancing the special disabilities imposed on religious activity under the Establishment Clause. It empowered courts to excuse individuals from complying with a law if they could show that the law unduly burdened their sincere religious practices, unless the government could prove that mandating uniform obedience to the law was required by a compelling interest56 that could not be protected in any less intrusive manner.57 For example in Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos58 the USSC upheld the constitutionality of a law permitting religious organizations to exercise a religious preference when making employment decisions. An exemption was held to apply only to those organisations whose “purpose and character are primarily religious”. In practice the court rejected most exemption

56 The pre-Smith authorities for this test are generally held to be Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, [I972] 406 U.S. 205 (1972). 57 See, Green (1993), p. 1611. 58 483 U.S. 327, 329, 339 (1987).

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claims.59 By the 1980s the exemption was being narrowly interpreted: religious entities were not as a matter of course able to claim immunity from state laws intended to have universal application.60 This was underlined by the USSC, in Employment Division v. Smith,61 when it ruled that: a law was not discriminatory if it applied to all religions equally; religion could not be used to shield professed religious adherents from the consequences of engaging in a prohibited activity. The resulting introduction of the Religious Freedom Restoration Act 1993 (RFRA) “forces courts into the awkward position of assessing the sincerity of a group’s religious beliefs and then carving out exceptions to federal statutes in order to accommodate these beliefs”.62 In addition, the exemption has been further restricted to protect only those activities of a religious organisation which are religious in nature.63

6.2.2.3

The ‘Ministerial Exception’

This doctrine interprets the Free Exercise Clause to permit discrimination by religious organizations, on the basis of religion, when hiring individuals who perform religious functions.64 In 1972, Congress amended s.702 of Title VII to provide religious organizations with broader protection than that implied by the Ministerial Exception. Subsequently, in Amos, the USSC found the amendment furthering the free exercise interests of religious organizations to be compliant with the Establishment Clause.65 In Rayburn66 the court found that “if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered ‘clergy.’”67 Then Elvig v. Calvin Presbyterian Church68 confirmed that the appointments of ministers and clergy are exclusively matters for determination

59

See, for example, Thomas v. Colins, 323 U.S. 65 S.Ct. 315. 89 L.Ed. 430. For example, in Alamo Foundation v. Secretary of Labor 471 U.S. 290 (1985). Also, see, United States v. Lee 455 U.S. 252 (1982). 61 48 U.S. 872 (1990). 62 Ibid, p. 1145. 63 Redhead v. Conference of Seventh-Day Adventists, 440 F. Supp. 2d 211 (E.D.N.Y 2006). 64 See, for example: See Kraft v. Rector, Churchwardens, and Vestry of Grace Church in N.Y., No. 01-CV-7871, 2004 WL 540327; Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299, 1301-04 (11th Cir. 2000); Combs v. Central Tex. Ann. Conf. United Methodist Church, 173 F.3d 343, 345-51 (5th Cir. 1999); and EEOC v. Catholic Univ. of Am., 83 F.3d 455, 461-65 (D.C. Cir. 1996). 65 See, Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, (1987). 66 Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir.1985). 67 Ibid, p. 1169. 68 397 F.3d 790, 790 (9th Cir. 2005). 60

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by religious organisations—thus the Catholic Church may deny ordination to women—and are completely immune from a Title VII challenge. As Roberts CJ explained in Hosanna-Tabor69 the exception privilege “ensures that the authority to select and control who will be minister to the faithful – a matter ‘strictly ecclesiastical,’ – is the church’s alone”.

6.3

Conscientious Objection and Exemption: An Evolving Policy

The narrative for an evolving U.S. policy in respect of conscientious exemption followed the same milestones as in England and Wales, with differences largely in timing rather than sequencing, but with some distinctive aspects.

6.3.1

Initial Exemptions

Exemptions from established and legally enforceable civic duties on grounds of conscientious objection were first recognised in respect of the swearing of oaths, military service and vaccination programmes.

6.3.1.1

Legal Recognition of ‘Conscience’

Article 6 of the 1789 Constitution grants universal exemption from any requirement to swear an oath that recognises a deity: ‘no religious test shall ever be required as a qualification to any office or public trust’. This has not prevented most states from routinely providing for such a ‘swearing in’ of jurors or witnesses but this is not a legal requirement and the substitution of a solemn affirmation is always acceptable. Any room for ambiguity was laid to rest by the ruling of the USSC in Torcaso v. Watkins70 which upheld the appeal of an atheist against a requirement that he swear an oath on application to the post of notary public. The court ruled that the First Amendment, as applied to state and local governments by Amendment 14, prohibits government from forcing a person to profess a belief in God or in any religion as a condition of obtaining public services or benefits. Conscientious objection to bearing arms has a history that stretches back to the war of independence from Great Britain when the established presence of substantial Quaker communities—especially in Pennsylvania—guaranteed peaceful resistance to conscription in the armed forces. Then, as in every subsequent war in which the 69 70

Hosanna-Tabor, op cit. 367 U.S. 448 (1961).

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U.S. has been engaged, exemption from combat duties has been available to those who could provide evidence of being conscientiously opposed to the bearing of arms; though exemption was often accompanied by fines, imprisonment, or assignment to non-combat duties.71 In Seeger v. United States72 and Welsh v. United States,73 the USSC established the right to refuse to join the armed forces, on grounds that went beyond religious belief to include moral conviction but otherwise the absence of USSC caselaw on this issue testifies to its broad acceptance74 (see, further, below Sect. 8.4.1). At much the same time as in England and Wales and prompted by the same rise in smallpox cases, mandatory vaccinations were introduced by legislation, though state by state rather than on a national basis. Boston, in 1827, became the first city to require all children entering public schools to show proof of vaccination and in 1850 the first state statute, mandating the vaccination of school pupils against smallpox, was enacted in Massachusetts. The number of objectors, conscientious and otherwise, was such that the issue of compulsory vaccinations reached the courts in a number of cases. Of particular significance was the ruling of the USSC more than a century ago, in Jacobson v. Massachusetts,75 when the court made a finding with a very contemporary resonance with its decision that vaccination was a form of self-defence: “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members”. The USSC returned to this issue in Zucht v. King76 when it ruled that a school could deny admission to unvaccinated children and again in its finding in Prince v. Massachusetts77 that the state had power over certain activities of children, including requiring that they be vaccinated. Much later, in 1987 in the throes of a measles epidemic, the Arizona Appeal Court considered the rights of objectors when weighed against the state’s duty of care requiring it to protect its citizens and concluded, in Maricopa County Health Department vs. Harmon,78 that denying un-vaccinated children access to school until the risk for the spread of measles had passed was justified.

71

See, further, Marshall (2019). 380 U.S. 163 (1965). 73 398 U.S. 333 (1970). 74 Not until Girouaud v. United States, 328 U.S. 61 (1946) and Gillette v. United States, 401 U.S. 437 (1971) was this issue considered by the USSC. 75 197 U.S. 11 (1905). 76 260 U.S. 174 (1922). 77 321 U.S. 158 (1944). 78 750 P.2d 1364 (Ariz. Ct. App. 1987). 72

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243

An Aspect of Citizenship

The broader interpretation of religion/belief introduced by the rulings in Seeger and Welsh—together with the associated exemption from a civic duty—became highly contentious when transposed to other settings. Although the universality of moral precepts grounded in traditional incidences of citizenship were found to have some viability when extended to jury service79 and gender inequality,80 they had less traction when applied in a purely professional framework such as medicine or in relation to niche issues such as genetically modified crops, the financing of political campaigns81 and the gerrymandering of electoral district boundaries.82 There were also issues arising as to what degree of remove from the statutorily mandated function qualified for exemption privileges. For example, in relation to abortion procedures, whether an exemption right was limited to those performing the procedure or could be extended to assisting nurses, auxiliary staff, and perhaps to a facilitating receptionist, secretary or to anyone associated with the process; and whether, if granted, it should be subject to a responsibility to ensure service referral which might be construed as contributing to, or facilitating, a process to which the referrer had a legitimate objection.

6.3.2

Abortion, Contraception and Adoption: A Context for Developing Policy

While other social issues of contentious morality were also of pressing concern— including capital punishment, racism, wealth inequality and gun control—it was abortion and contraception that became an early focus for conscientious objectors and has continued to represent the most enduring faultline in the U.S. culture wars. The objector of pivotal significance in the many decades of policy debate on abortion—even if not definable as ‘conscientious’—was the plaintiff in Roe v. Wade83 who asserted that the law in Texas, where she lived, breached her constitutional rights by prohibiting abortion except when necessary to save a mother’s life. The USSC agreed, ruling that the Due Process Clause of the Fourteenth Amendment provides a “right to privacy” that protects a pregnant woman’s right to choose whether or not to have an abortion. Since that decision abortion has been legally available on a nationwide basis, although access can be problematic, a

79

See, for example, Healy v. Edwards, 363 F. Supp. 1110 (E.D. La. 1973). See, for example, Frontiero v. Richardson, 411 U.S. 677 (1973), Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) and Wal-Mart v. Dukes, 564 U.S. 338 (2011). 81 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). 82 Shelby County v. Holder, 570 U.S. 529 (2013). 83 410 U.S. 113 (1973). Also, note, Struck v. Secretary of Defense, 460 F.2d 1372 which concerned the plaintiff captain’s unsuccessful objection to dismissal from the Air Force due to pregnancy. 80

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state of affairs that has generated untold numbers of conscientious objectors protesting that abortion is a violation of their religious values. In response to Roe, Congress promptly passed the Church amendment to the Health Programs Extension Act 1973 declaring that public officials may not require individuals or organizations who receive public funds to perform abortion or sterilization procedures or to make facilities or personnel available for the performance of such procedures if such performance “would be contrary to [the individual or entities] religious beliefs or moral convictions”.84 This continues to provide that the receipt of federal funds in various health programs will not require hospitals or individuals to participate in abortions, if they object based on moral or religious convictions. The amendment also forbids hospitals in these programs to make willingness or unwillingness to perform these procedures a condition of employment. By 1978 virtually all states had enacted conscience clause legislation in one form or another and most legislated to offer protective carve-outs for religious entities and specific protection in the areas of abortion, sterilization, and contraception. Then, in 1980, the Harris v. McRae case85 confirmed that federal Medicaid funding would not be available for abortion services which constrained access to such services for low-income women. Following the Church Amendment, forty-seven states developed “conscience clauses” regarding the refusal to perform abortions. In 1996 Congress passed the Coats-Snowe Amendment to the Public Health Service Act to protect the refusal right of individual health care staff in relation to participation in abortion procedures. It maintained federal funding and the legal status of medical institutions not offering abortion training or providing referrals for individuals seeking abortion training at another institution, and it prohibited discrimination against institutions and individuals who refuse to provide such training. Under this Amendment institutions and/or individuals no longer needed to claim moral objections for their noncompliance. In 2004, the Weldon Amendment was signed into law adding another federal conscience clause provision and one that continues to be part of the current Appropriations bills.86 In 2008, the Office of Civil Rights (OCR) finalized a rule to enforce the Church, Coates-Snow, and Weldon amendments—all designed to protect health workers and entities who object to assisting in abortion or sterilization for religious or moral reasons. In 2011, the Obama administration introduced the Affordable Care Act which contains two conscience provisions one of which, s.1303(b)(4), prohibited any penalising of a health care provider or facility for refusal to provide, pay for, provide coverage of, or refer for abortions. In 2017, President Trump signed an Executive Order, Promoting Free Speech and Religious Liberty, and followed this by creating the Office of Conscience and Religious Freedom within the HHS to “more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom”. In 2019, the Trump administration promulgated

Health Programs Extension Act, 1973, § 300a-7(b). 448 U.S. 297 (1980). 86 See, further, at: https://www.aabri.com/manuscripts/10705.pdf, p. 5. 84 85

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a final rule entitled ‘Protecting Statutory Rights in Health Care’ also known as the ‘Conscience Rule’,87 followed later by statutes in Mississippi and Texas abridging access to abortion. The social divisions caused by the abortion debate may have been defused somewhat, or perhaps just further complicated, by the introduction and gradual acceptance of contraception. From the Comstock laws in the late nineteenth century (prohibiting the distribution of contraceptives and related information) to the provisions in the 2010 Affordable Care Act (providing for employer subsidy of contraceptives for employees) the availability of contraception has become steadily less contentious. Nonetheless, until the late 1930s most states retained—even if some no longer rigorously enforced—anti-birth control laws despite protests led by social activists such as Margaret Sanger.88 The launch of the Planned Parenthood Federation of America in 1942, and the subsequent nationwide spread of its birth control clinics, marked a turning of the tide in terms of social acceptance of contraception and repeal of obstructive legislation. This was consolidated in the post WWII era when birth control was fully embraced by the medical profession and legislators. In this context, Griswold v. Connecticut89 in 1965 was a landmark case. The USSC then ruled that it was unconstitutional for the government to prohibit married couples from using birth control. In so doing the court struck down the 1879 Connecticut anti-birth control legislation and rendered redundant all other such state laws, insofar as married couples were concerned. While the plaintiff, being a director of the local Planned Parenthood clinic, was clearly acting in self-interest and as a social activist, his motivation may, perhaps, be seen in retrospect as underpinned by conscientious objection: his firm and sincerely held belief in women’s reproductive rights was accompanied by an objection on principle—though also on other grounds—to the prevailing legal constraints. More recently, the Trump administration intervened to reshape government policy. In 2017 rules were issued enabling employers, health-insurance providers, and universities claiming a religious or moral objection to contraception, to opt out of contraceptive coverage in their health plans. In 2019, the HHS published new regulations to expand the potential scope of permissible religious objections to providing reproductive-health services and forbidding entities receiving federal funds from requiring any health-care entity to provide referrals for or even information about procedures to which that entity objects.90 In contrast to the polarising social divisions caused by dissension over recourse to abortion and/or contraceptives, the legal and social approach to adoption was much

87

Likely to be revised or repealed by the Biden Administration. See, further, at: https://www.plannedparenthood.org/files/9214/7612/8734/Sanger_Fact_Sheet_ Oct_2016.pdf. 89 381 U.S. 479 (1965). 90 This federal initiative must be viewed in the light of the contemporaneous rulings by Engelmayer J in New York v. U.S. Dep’t of Health & Human Servs., S.D.N.Y., No. 1:19-cv-4676, (2019) and the USSC in NIFLA v. Becerra, No. 16-1140, USSC, (2018). 88

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more positive and accepting. The increase in the number of adoptions in the 1950s and 1960s was largely conditioned by the same factors as prevailed in the other Part III jurisdictions and more generally in the western world: generated by the same set of prevailing social values; fuelled by the considerable numbers of relinquishing unmarried mothers; and indicative of the insatiable need of the many infertile married couples for the child that could pass as their own. This legal mechanism for addressing the social issue of unwanted pregnancies, the only one that did not attract the institutionalised conscientious objection of the Church, was faciliated by government at state and federal levels. However, as in the other CANZUS nations, conscientious objection has a particular and poignant significance in relation to the history of adopting indigenous children into non-indigenous families. The ‘conscientious’ dimension is the same in all those nations: the objections of birth parents flow in part from the violation and displacement of their tribal culture and beliefs—due to misguided State assimilationist policies—causing intergenerational disruption to family, community and cultural integrity.

6.3.3

Same Sex Relationships: Evolving Contemporary Policy

Policy in relation to same sex relationships evolved along much the same process of linear progression, with staged milestones, over much the same timeline as abortion policy. This was no coincidence. The USSC was simultaneously engaged in exploring application of the Due Process Clause in both contexts. As in Roe, it was the Due Process Clause of the Fourteenth Amendment with its recognition of a right to personal liberty that provided the key to decriminalising same sex relationships. It allowed the USSC, to forge, through a series of decisions spread over many decades, a right to individual and family privacy, asserting and protecting a “private realm of family life which the State cannot enter.”91 The decriminalising process really began with Eisenstadt v. Baird92 when the courts established that sexual relations between consenting adults are an aspect of the liberty that falls to be protected by that right. This led to the state-by-state decriminalising of consensual sexual relations between same-sex couples during the period 1960–1990 despite cases such as Bowers v. Hardwick93 in which the

91

Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Society of Sisters, 268 U.S. 510 (1925); and Meyer v. Nebraska, 262 U.S. 390 (1923). 92 405 U.S. 438 (1972). 93 478 U.S. 186 (1986).

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USSC upheld state sodomy laws. Ultimately, overruling the Bowers decision, the USSC in Lawrence v. Texas94 determined that:95 The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their identity by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.

In upholding the appeal the USSC found that the Texas law, criminalising homosexual conduct, breached “the right to privacy in the home” and “the right to freely engage in consensual, adult sex” and in so doing it violated the Fourteenth Amendment’s Due Process Clause. This decision in effect legalised same sex relations nationwide and established a benchmark—State respect for privacy in sexual relations—which subsequently transferred into a contemporary SOGI context. However, resistance to equality of status for same sex and heterosexual relationships continued and reached an apogee of sorts in the federal Defense of Marriage Act (DOMA) 1996 which recognized only heterosexual unions and denied federal benefits to any same-sex couple granted the right to marry under state law; a statute replicated by the legislatures of some forty states. Not until 2003, with the USSC decision in Lawrence v. Texas,96 was it established on a federal basis that same sex relations were protected by a right to privacy under the Fourteenth Amendment. It was the seismic shift in social mores brought about by the USSC decision in Obergefell97- building on foundations laid in United States v. Windsor98 and Hollingsworth v. Perry99—that saw marriage accommodate same sex spouses.100 The decision came about as a consequence of the plaintiff Obergefell’s objection to the exclusionary effect of prevailing laws and who argued, successfully, that the laws violated his rights under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. This decision, triggering nationwide change to an institution that for centuries had rested on a binary pattern of gender and sexuality, naturally progressed to permeate laws governing relationships, parenting arrangements etc. and in so doing generated ever more conscientious objections in the expanding field of sexual orientation and gender identity while exacerbating existing rifts in the nation’s culture wars.

94

539 U.S. 558 (2003). Ibid, para. 34. 96 Op cit. 97 Obergefell v. Hodges, 576 U.S. (2015). 98 570 U.S. 744 (2013). 99 570 U.S. 693, 133 S. Ct. 2652 (2013). 100 See, also, Obergefell v. Kasich, 576 U.S. 644, Deboer v. Snyder, 135 S Ct. 1040 (2015), Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014) and Tanco v. Naslam, 7 F. Supp. 3d 759, (M.D. Tenn. 2014). 95

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One such further area of contention focused on trans persons and marriage. The early ruling in M.T. v. J.T.101 was important because for the first time in the U.S. a post-operative trans person concluded a valid marriage with someone who, prior to surgery, would have been of the same sex. Subsequently, a series of not dissimilar cases in various states concluded otherwise.102 Not until the USSC decision in Obergefell was the right of a trans person to marry in their acquired gender established on a federal basis.

6.3.4

Medical Advancement: Contiguous Policy Development

The advancement of medicine has been accompanied by a corresponding emergence of complex morality issues with many associated opportunities for conscientious objection. The genetic modification of crops was an early target and one that came before the USSC in Diamond v. Chakrabarty103 when it was found that the modification constituted a manufacturing process and the product was therefore amenable to patenting under the Patent Act 1952. Similarly, the potentially adverse environmental impact of G.M. crops has also provided a focus for such protests.104 Needless to say, however, it has been the use of human embryos for research purposes and the direct editing of embryos to prevent inherited diseases—resonating with the eugenic experiments of an earlier era—that has recently generated most controversy. While the discovery and application of the CRISPR-Cas 9 genetic editing technique has the potential to eradicate the inter-generational transfer of diseases—such as cancer, ALS and Alzheimer’s—some fear that it may also be used commercially to create ‘designer babies’.105 Future conscientious objections, from those who consider that their religion/belief/conscience will be violated by such developments in medical science, can be predicted to follow this breakthrough in medical research. A more recent target was presented by the contention regarding the morality of medically assisted death. In 2011, when the Obama administration introduced the Affordable Care Act, one of its two conscience clauses—s.1553—prohibited recipients of federal funds from discriminating against entities that declined to participate in medically assisted deaths. Since then a number of states have introduced 101

140 N.J. 77, 355 A.2d 204, 205 (NJ Super. Ct. 1976). See, for example: Littleton v. Prange, 9 S.W.3d 223 (1999), (Texas, 7 year marriage between transexual woman and deceased ‘husband’ declared invalid); In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), (Kansas, marriage of a man and a trans woman, voided); and Kantaras v. Kantaras, 884 So. 2d 155 (Fla. Ct. App. 2004), (Florida, transgender man seeking to invalidate marriage to ‘wife’, marriage declared void). 103 447 U.S. 303 (1980). 104 See, for example, Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139. 105 See, further, Monoya (2020), pp. 1015–1054. 102

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legislation permitting healthcare professionals to so participate but subject to ‘conscience clauses’ that exempt those who decline to do so for personal reasons of religion/belief/conscience.

6.4

From Policy to Legislation

As Taub has pointed out, for decades there was bipartisan consensus that healthcare professionals should be free to decide, on the basis of their religion/belief/conscience, whether or not they would participate in certain medical procedures. This consensus was reflected in “the twenty-five federal laws providing conscience protections to people and entities with a religious or moral objection to certain medical procedures – primarily abortion, sterilization, and euthanasia”.106 In recent years that consensus has collapsed, the issues open to conscience considerations have multiplied but the law has not kept pace and there is now a growing disconnect between the range of such issues and any matching legal provisions able to address possible related exemptions.

6.4.1

Universal Legislative Constraints

The Equal Protection Clause of the Fourteenth Amendment places a legal obligation on the State, and therefore on all government entities, to ensure that similarly situated individuals are treated equally.107 This has been interpreted to allow affirmative state action to offset entities that are found to be disadvantaged.

6.4.1.1

Laws that Unfairly Burden a Minority

Added weight has been given to the Equal Protection Clause by the USSC decisions in Employment Division v. Smith,108 viewed by many as a beacon for equality rights,109 and in Romer v. Evans110 when the court held that a state law specifically 106

Taub (2020). Alford v. Consolidated Gov’t of Columbus, Ga., 438 F.App’x 837, 839 (11th Cir. 2011); citing Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). 108 48 U.S. 872 (1990). 109 The USSC then held that that a person may not defy neutral laws of general applicability even as an expression of religious belief. Note that the proposed Employment Non-Discrimination Act (ENDA) would add a prohibition on SOGI discrimination not only to employment law, but also to public accommodation, education, federal financial assistance, housing, credit, and federal jury service. 110 517 U.S. 620 (1996). 107

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designed to disadvantage lesbians, gay men and bisexuals violated the Fourteenth Amendment’s Equal Protection Clause; the targeted group had the same right to seek government protection against discrimination as any other group. Justice Kennedy then noted that a law may prevail under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to “advance a legitimate government interest”.111 The RFRA, introduced in response to the decision in Smith, provides for exemptions from laws that that unfairly burden a minority. Needless to say it will be of little assistance to a defendant who seeks to shield his illegal actions by protesting that he conscientiously objected to a universal law that restricted his right to give effect to his religious beliefs. So, in S.D. v. M.J.R.,112 a Muslim husband was convicted of sexually assaulting his wife despite a plea that his beliefs negated the wilful intent necessary for him to have committed a crime. Religious Liberty Laws In March 2016 the state of Mississippi passed what some commentators called the “most expansive and malicious anti-LGBTQ” legislation in the nation.113 The law, commonly referred to as ‘HB 1523’, permits state employees to refuse to participate in service provision to LGBT persons if doing so would contravene their religious beliefs. It specifies three beliefs that qualify the holder for exemption: that marriage happens only between a man and a woman; that sex should only take place in that kind of marriage; and that a person’s gender is decided at birth and cannot be changed. Following the above mentioned launch, in 2018, of the Conscience and Religious Freedom Division and the White House Faith and Opportunity Initiative, many similar religious liberty bills were formulated for introduction by legislatures across the country. The State neutrality principle is now clearly under threat from these “liberty laws” or “religious freedom laws” that by 2020 had been introduced in at least 20 states. Ostensibly, the legislative intent has been to allow conscientious objectors ections to matters such as same sex marriage and transgender identity to act in accordance with their beliefs without having to fear prosecution for breaching equality and non-discrimination provisions. Others, however, view such laws as a cynical political exercise: using freedom of expression as a flag of convenience to extend the religious exemption from equality laws; to include not just the traditional moral imperatives but other proxy religious issues; thereby stiffening the resolve of conservative voters and winning some local battles in the nation’s culture wars. This may have some resonance with times past when public morality was used as a

Justice Kennedy found that an “animus” motivated Amendment 2: “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects”. 112 415 N.J. Super. 417, 427–29, 431 (N.J. Super. Ct. App. Div. 2010). 113 Also known as the Patient Protection and Affordable Care Act 2016, or HB 1523. See, Barber v. Bryant 17-547, and Campaign for Southern Equality v. Bryant, 17-642. 111

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pretext for animus. To paraphrase Justice O’Connor’s observation in the era of Texas sodomy laws: “the law serves more as a statement of dislike and disapproval . . . the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”114

6.4.1.2

Criminal Law Constraints

Some such federal initiatives, if limited, are focused on homeland security:115 antiterrorism laws restricting disclosure of information that might constitute a national security threat; and data protection laws that prohibit unauthorised access to private data. They also include: in 2009, the Hate Crimes Prevention Act which added gender identity to the definition of a hate crime; in 2014, a Presidential executive order was issued prohibiting discrimination against transgender people employed by the federal government and its contractors; and in 2016, the Departments of Education and Justice issued informal guidance, since withdrawn by the Trump Administration, that publicly funded schools should make the necessary arrangements for students to use bathrooms appropriate to their gender or transgender identities. Covid-19 Pandemic Constraints The decentralised nature of government has resulted in a range of different responses to the pandemic: federal authorities, state governors and city mayors have all demonstrated a capacity to act independently; although the Trump Administration declared a public health emergency and issued national health and safety guidelines, state level interventions proceeded seemingly without a need for an interstate co-ordinated strategy.

6.4.2

Contemporary Government Initiatives

The chronology of relevant government initiatives has been usefully summarised as follows:116 President George W. Bush’s Department of Health and Human Services (HHS or the Department) issued a final rule in 2008 enabling the agency to enforce three key federal

114

Lawrence v. Texas, 539 U.S. 558. Initiatives which were ratcheted up following such harrowing demonstrations of religiously inspired violence as the 9/11 atrocity and the killing of 13 people in a mass shooting at Fort Hood in Texas by a U.S. Army major claiming allegiance to Islamic militants. 116 See, ‘NY v. HHS and the Challenge of Protecting Conscience Rights in Healthcare’, the Federalist Society Review, Vol 21, at: https://fedsoc.org/commentary/publications/ny-v-hhs-andthe-challenge-of-protecting-conscience-rights-in-healthcare. 115

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conscience provisions.117 President Barack Obama’s administration, after considering whether to strike the rule entirely,118 instead chose to pare down the rule in 2011.119 In 2019, President Donald Trump’s HHS decided to restore and expand the Bush-era rule to cover twenty-five federal conscience laws.120

6.4.2.1

The Right to Conscientious Objection

Adenitire identifies at least five rules of law that currently ground this right:121 (1) the Free Exercise Clause of the First Amendment under federal constitutional law as interpreted by the USSC in Smith (albeit this is now very narrow), and the Free Exercise clauses of some state constitutions which did not interpret their own constitutions according to Smith; (2) The Religious Freedom Restoration Act (RFRA) which applies to the federal government and similar state legislation that applies in the states which have enacted them; (3) the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which applies mainly to state governments in the context of land regulation, zoning laws and prisoners; (4) Title VII of the Civil Rights Act of 1964 (and similar state level legislation) which requires certain categories of employers to accommodate the religious beliefs of their employees in performing their employment duties; and (5) the constitutional requirements of Church Autonomy.

6.5

Legislative Framework: International and Domestic

The United States is a signatory State to most of the ten core international human rights instruments, some with optional protocols. However, there is no international or federal authority that can ensure a nationwide and uniformly compliant human rights regime; each state enjoys considerable independence.

Ibid, ‘Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law’, 73 Fed. Reg. 78072 (Dec. 19, 2008) (codified at 45 C.F.R. Part 88). 118 Ibid, Rescission of the Regulation Entitled ‘Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law’; Proposal, 74 Fed. Reg. 10207 (proposed Mar. 10, 2009). 119 Ibid, ‘Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws’, 76 Fed. Reg. 9968 (Feb. 23, 2011) (codified at 45 C.F.R. Part 88). 120 Ibid, ‘Protecting Statutory Rights in Health Care’, 84 Fed. Reg. 23170 (May 21, 2019) (codified at 45 C.F.R. Part 88) (Conscience Rule). 121 Adenitire (2020). 117

6.5 Legislative Framework: International and Domestic

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International Legislation

The U.S. was one of 48 nations that adopted the Universal Declaration of Human Rights (UDHR) in 1948. It subsequently signed and ratified the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It has signed but not ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), nor has it signed the Optional Protocol or ratified the UN Convention on the Rights of the Child (UN CRC) or the ILO Convention 169, nor the International Convention on Economic, Social, and Cultural Rights (ICESCR), (see, further, Sect. 3.2). The failure to ratify is in part due to a technical issue: a two-thirds Senate majority is required; in the current political climate this is almost impossible to achieve.

6.5.1.1

The American Convention on Human Rights

Adopted in San José, Costa Rica, on 22 November 1969 and signed by the U.S. in 1977, but not yet ratified. Article 12(1) proclaims that: Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private.

6.5.2

The Constitution and Federal Legislation

The Constitution, in effect since 1789—originally comprising 7 Articles, though since amended 27 times—together with a handful of federal statutes, provides an umbrella framework of national law relevant to issues of conscientious objection.

6.5.2.1

The Constitution

The first 10 Amendments, collectively known as the Bill of Rights, offer specific protections for individual liberty and justice and place restrictions on the powers of government. The Free Exercise Clause of the First Amendment guarantees the freedoms of expression, assembly, association and religion while the Establishment Clause provides that “Congress shall make no law respecting an establishment of religion”.122 The Fourteenth, with its Equal Protection and Due Process Clauses, asserts federal authority by forbidding states to deny any person their “life, liberty, or property, without due process of law” and guarantees every person within a state’s 122

Zelman v. Simmons-Harris, 536 U.S. 639, 648-49, 122 S. Ct. 2460, 153 L. Ed. 2d 604 (2002).

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jurisdiction “the equal protection of its laws.” The Fourteenth has grounded the development of the Supreme Court’s jurisprudence on personal privacy and equality.

6.5.2.2

Conscience Protection Act 2019

Now in effect, this statute amends the Public Health Service Act to prohibit governmental discrimination against providers of health services that are not involved in abortion; it makes specific provision for a private right of action to enable the private enforcement of the existing 25 federal laws with ‘conscience clauses’ thereby greatly facilitating initiatives by conscientious objectors.

6.5.2.3

The Whistleblower Protection Enhancement Act 2012 (WPEA)

This strengthened the protections available for federal employees who disclose evidence of waste, fraud, or abuse and also makes requirements regarding non-disclosure policies, forms and agreements.

6.5.2.4

The Affordable Care Act 2010

Referred to as the ‘ACA’ this legislation amended the Public Health Services Act 1944. It aims to make affordable health insurance available to more people, to expand Medicaid and to support innovative medical care delivery methods designed to lower the costs of health care generally.123

6.5.2.5

The Hate Crimes Prevention Act 2009

This expands the 1969 United States federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability. In 2016, it was used for the first time in respect of a gender identity crime when a man was successfully prosecuted for murdering his transgender ex-girlfriend.

6.5.2.6

The Religious Land Use and Institutionalised Persons Act 2000

This statute includes a section protecting individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws, and a section protecting the religious rights of persons confined to institutions, such as

123

See, further, at: https://www.healthcare.gov/glossary/affordable-care-act/.

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prisoners. It amended the 1993 Act by redefining an exercise of religion as any exercise “whether or not compelled by, or central to, a system of religious belief”, which is to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution”. This was upheld by the USSC in Gonzales v. O Centro Espirita,124 which emphasized that in establishing the existence of a ‘compelling interest’ that would justify interfering with an exercise of religion, the burden of proof always rested on the government and if, as in this case, the evidence is in equipoise, the court must rule against the government.

6.5.2.7

The Personal Responsibility and Work Opportunity Reconciliation Act 1996 (PRWORA)

Under s.104 of this Act the “Charitable Choice” program was established which led to the creation of Faith-Based and Community Initiatives.

6.5.2.8

The Religious Freedom Restoration Act 1993 (RFRA)

The RFRA was a legislative response to the USSC ruling in Employment Division v. Smith.125 It states that federal government “shall not substantially burden a person’s exercise of religion” unless the government proves that burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.126 The prohibition applies “even if the burden results from a rule of general applicability” except when able to satisfy the compelling interest test.127 At least 20 states subsequently replicated RFRA provisions in state statutes.

6.5.2.9

The Equal Access Act 1984

This legislation requires federally funded secondary schools to provide equal access to extracurricular student clubs or groups on school grounds. The legislative intent being to counteract perceived discrimination against religious speech in public schools and overturn two appellate court decisions that had held that allowing student religious groups to meet on campus before and after classes would violate the Establishment Clause.

124

546 U.S. 418 (2006). 494 U.S. 872 (1990). 126 The non-applicability of the RFRA to state laws was confirmed in City of Boerne v. Flores 521 U.S. 507 (1997). 127 Reference 42 U.S. Code 2000bb, s.3(a) and (b). 125

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The Civil Rights Act 1964: Title VII

The Civil Rights Act, an iconic milestone for US and for anti-discrimination laws everywhere, is a federal statute prohibiting discrimination in public life including in commerce and education. Title VII prohibits employers, with 15 or more employees, from discriminating against employees or prospective employees on specified grounds. Title VII was amended by the Civil Rights Act of 1991, in response to Supreme Court decisions, thereby “expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination”.128 Its importance for conscientious objection has been noted by the USSC which has emphasised that its provisions have the effect of “affirmatively obligating employers not to fail or refuse to hire or discharge any individual . . . because of such individual’s religious observance and practice”.129 Many employers, including health-care providers, are required under Title VII to reasonably accommodate a worker’s religious, moral, or ethical beliefs, unless the accommodation causes the employer undue hardship.

6.5.2.11

Other Legislation

The Civil Service Reform Act 1978 protects federal government employees by prohibiting sexual orientation discrimination. The Equality Act 2019—about to become law—will amend the Civil Rights Act of 1964 to prohibit discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations, public education, federal funding, credit, and the jury system. It defines: “sex” to include a sex stereotype, sexual orientation or gender identity, and pregnancy, childbirth, or a related medical condition; “sexual orientation” as homosexuality, heterosexuality, or bisexuality; and “gender identity” as gender-related identity, appearance, mannerisms, or characteristics, regardless of the individual’s designated sex at birth. A further piece of relevant legislation is the proposed Employment Non-Discrimination Act (ENDA), which would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. It now seems unlikely that this will become law.

Pub. L. No. 102-166, 105 Stat. 1071 (1991) §§ 2(2), 3(2), 105 Stat. at 1071. Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch Stores Inc., 575 U.S. (2015), per Scalia J, p. 7. 128 129

6.6 Framework of Courts and Regulatory Bodies

6.5.2.12

257

Equality and Non-Discrimination

The proclamation in the Declaration of Independence that “all men are declared equal”130 was the political touchstone for U.S. equality laws and this principle subsequently found endorsement in the “equal protection of the laws” provision in the Fourteenth Amendment which places a legal obligation on the State, and therefore on all government entities, to ensure that similarly situated individuals are treated equally.131 Currently, each state has its own roughly similar framework equality and non-discrimination laws. Litigation is also initiated directly under the Equal Protection Clause, under state law, and under other federal statutes.

6.6

Framework of Courts and Regulatory Bodies

Issues of conscientious objection are adjudicated on an exclusively domestic basis, to be heard and resolved in federal and state courts and administrative proceedings, though there is recourse to review on certiorari by the USSC, at its discretion.

6.6.1

International Courts and Regulatory Bodies

The U.S. refutes the jurisdiction of international courts on the grounds that it cannot accept any constraints on its sovereignty. However, as a signatory nation to the American Convention on Human Rights it accepts the associated regulatory roles of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. A perceived threat to its sovereignty prompted the U.S. withdrawal from the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and United Nations Human Rights Council (UN HRC) in October 2017 and July 2018 respectively.

Fred Gedicks comments that “the Declaration, for all its mythological power in the American imagination, is rarely cited even for its rhetorical content in SCOTUS decisions. It has no precedential and little persuasive authority” (note to author: 02.10.21). 131 Alford v. Consolidated Gov’t of Columbus, Ga., 438 F.App’x 837, 839 (11th Cir. 2011); citing Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). 130

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The Human Rights Committee (HRC)

This body of international experts monitors the progress of States parties, including the U.S., in implementing the provisions of the ICCPR. The U.S. submitted reports, pursuant to the Universal Periodic Review process, in 2010, 2014 and 2020.132

6.6.2

Domestic Courts and Regulatory Bodies

Each state has its own judicial and regulatory system including a state Supreme Court. The United States Supreme Court (USSC) is the ultimate court of appeal. Appointments to this court are made on the basis of nomination by the President and confirmation by the Senate which leaves them open to political bias resulting in a very divided bench that makes some seemingly weak decisions.133

6.6.2.1

Federal Courts

Article III of the Constitution grants federal courts the authority to hear only “cases” and “controversies.”134 The federal Circuit Court of Appeals hear cases on appeal from rulings issued by state district courts and when sitting en banc the court has authority to review and set aside its earlier precedents. The review jurisdiction of the United States Supreme Court (USSC) is discretionary and is exercisable, in respect of controversies, on a writ of certiorari under Rule 10 of the U.S. Supreme Court’s rules of procedure. It is to be noted that decisions by federal U.S. District Courts have no precedent value, not even within the districts where they are decided. They are treated as significant, especially on novel questions, but not as binding. This does not apply to the federal appellate or “circuit” courts, the decisions of which are binding within their circuits and considered to be highly persuasive authority in other circuits.135

132 See, further, at: https://www.state.gov/universal-periodic-review/2020-universal-periodicreview-of-the-united-states-of-america/. 133 For example, the USSC decision in Burwell v. Hobby Lobby, 573 U.S. 134 S Ct 2751 (2014) was on the basis of a 5-4 majority. 134 U.S. Const. art. III, § 2, cl. 1. 135 Author acknowledges advice from Fred Gedicks on this matter (note to author: 02.10.21) to be borne in mind throughout this chapter.

6.7 Fundamental Human Rights and Conscience

6.6.2.2

259

The Equal Employment Opportunity Commission (EEOC)

This federal agency administers and enforces civil rights law and as such is the regulatory body for matters arising under Title VII of the Civil Rights Act 1964. It is responsible for enforcing federal equality and anti-discrimination laws. Many states have equivalent agencies with a right of appeal to the courts, which adjudicate on points of law and may grant leave of appeal to the state Supreme Court.

6.7

Fundamental Human Rights and Conscience

While essential for promoting the pluralism and diversity—for which the U.S. is rightly viewed as the standard bearer among the democratic common law nations— the weaponising of these fundamental rights by culture war protagonists may also have caused, or at least exacerbated, the polarisation that has now become such a prominent feature of U.S. society.

6.7.1

Freedom of Expression

It would be hard to overstate the importance of the right to free speech in relation to conscientious objection and nowhere has this right been more assertively proclaimed and generated more litigation than in the U.S. Some 80 years ago the USSC proclaimed, quite rightly, that “the democratic response to speech that people disagree with is more speech”.136 At much the same time, the USSC drew attention to the importance of preserving individual opinion in West Virginia Board of Education v. Barnette137 when, in the process of prohibiting a mandatory practice of saluting the national flag, the court found that the First Amendment required protection for “the sphere of intellect and spirit”. Again, in Wooley v. Maynard,138 when striking a law requiring compulsory display of the state motto (“Live Free or Die”) on license plates, it ruled that the same rationale applied to protect “individual freedom of mind”. Both cases, as Chief Justice Rehnquist later commented in Pacific Gas & Electric Company v. Public Utilities Commission of California gave protection to “the broader constitutional interest of natural persons in freedom of conscience”139 which constituted a strong endorsement for the legitimacy of conscientious objection. This concern for individuality as an aspect of freedom of expression was also apparent in Rosenberger v. Rector and Visitors of

136

Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213, (1940). 1943, p. 642. 138 1977, p. 714. 139 1986, p. 32. 137

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Univ. of Va140 when the USSC held that a university generally cannot withhold benefits from student groups because of their religious outlook and ruled: “it may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, . . . nor may it discriminate against speech on the basis of . . . viewpoint.”141 Freedom of expression, as that court has noted, is not violated by state penalty-enhancement laws for hate crimes142 and is a right with close links to expressive-association rights143 but does not imply a right to associated conduct.144 Not all views, however, qualify for First Amendment protection: they must touch upon a matter of public concern;145 and if they constitute ‘professional speech’ then care must be taken to avoid the potential pitfalls revealed by the USSC ruling in NIFLA v. Becerra.146 This principle—clearly relied upon in Rosenberger—would now seem to be constantly traduced by arbitrary censorship: the ‘no-platforming’ of representatives of minority views; and the broadening range of matters that are falling victim to the ‘cancel culture’ movement. York is on solid ground when she draws attention to how worrying this situation has become when ‘the President of the free world’ can have his free speech rights cancelled by unelected and unaccountable private individuals terminating his Twitter account.147 One variant of the freedom of expression that has found its way into court is the artistic expression of bakers, jewellers, photographers and florists148 etc. whose product is used by others to convey a message not endorsed by the producer. In the Masterpiece case,149 for example, a baker successfully relied upon the protection of the freedom of expression to justify his refusal, as a Christian and culinary “artist,” to bake a cake for a gay couple who, in turn, responded by conscientiously objecting to being so treated. Justice Kennedy, acknowledging that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression”, ruled on behalf of the USSC that the baker’s rights under the First Amendment had been violated; though the ruling was based on a finding of

140 515 U.S. 819, 829. See, also, Gay Alliance of Students v. Matthews, U.S. Court of Appeals (4th Circuit), 1976. 141 Rosenberger, pp. 17–19. 142 Wisconsin v. Mitchell, 508 U.S. 476. 143 Christian Legal Soc. Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 672, 689, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) at 622. 144 Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833. 145 Pickering v. Board of Education, 391 U.S. 563 (1968). 146 No. 16-1140, USSC, (2018). 147 Though, as Fred Gedicks points out this needs to be seen in the context of the “state action” doctrine, which, because of the wording of the 14th Amendment (“No state shall . . .”), through which the 1st Amendment is applied to the states, the freedom of speech applies only against government entities, not private corporations. See, also, York (2021). 148 Arlene’s Flowers Inc v. Washington, 138 S.Ct. 2671. 149 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018).

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religious bias on the part of local officials150 (see, further, below Sect. 8.6.1). Another such variant is clothing. Expressing a religious identity or sense of belonging through choice of apparel is an everyday occurrence. Although the right to freedom of expression is not vitiated by hate speech— including that of religious adherents—which denigrates people on the basis of their gender or sexual orientation,151 its exercise is subject to the provision that it causes no actual direct harm:152 causation and the definition of ‘harm’ being matters open to interpretation in the light of particular circumstances.

6.7.1.1

Personal Identity Issues

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”153 SOGI related issues provides a context—and there are others—where it can be difficult to distinguish litigation initiated on the grounds of conscientious objection from that initiated on grounds of discrimination. This would seem to be borne out by the USSC finding in Bostock154 that Title VII prohibits not just discrimination based on sex itself but also discrimination based on traits that are a function of sex, such as life expectancy155 and non-conformity with gender norms,156 and also the predicating of sexual orientation on a gender stereotype.157 A finding which would seem to identify causes for litigation on either set of grounds; some such litigants being conscientious objectors. In the U.S. as in other countries there have been a number of instances where trans persons have expressed their objection to exclusionary laws and processes158 and in so doing have drawn attention to a protest that blurs the distinction—where there is one—between litigation motivated by conscientious objection or by discrimination. Most recently this has become an issue for those who self-identify as non-binary or ‘intersex’. In Zzyym v. Pompeo159 the U.S. Court of Appeals (10th Circuit) ruled that 150

Author acknowledges advice from Cynthia Burack on this matter (note to author, 12.05.19). Snyder v. Phelps, 562 U.S. 443 (2011). 152 Schenck v. United States, 249 U.S. 47 (1919). 153 Obergefell v. Hodges, 576 U.S. (2015), per Justice Kennedy. 154 Bostock v. Clayton County, 590 U.S. _ (2020), (consolidated with Altitude Express, Inc. v. Zarda, 590 U.S. _ (2020)) at 112. 155 Citing, L.A. Dep’t of Water & Power v. Manhart, 435 U.S. at 711, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). 156 Citing, Price Waterhouse v. Hopkins, 490 U.S. at 250–251, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). See, also, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). 157 See, Zarda, op cit, and Simonton v. Runyon, 232 F.3d 33, (2d Cir. 2000) at 35. 158 See, for example, M.T. v. J.T, 140 N.J. 77, 355 A.2d 204, 205 (NJ Super. Ct. 1976). 159 0:18-cv-01453, (2018). 151

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the State Department exceeded its authority under the Passport Act of 1926 when it denied a passport to a social activist—proclaiming his credentials as an objector to exclusionary prevailing laws and asserting that such laws were discriminatory— who, being intersex and non-binary, did not identify as either male or female. The court held that “the authority to issue passports. . . does not include the authority to deny an applicant on grounds pertinent to basic identity”. Consequently, some states began removing the requirement to have a health care professional affirm a gender change request and some were adding a gender-neutral option of “X” in addition to “M” or “F”, which permits allows a greater degree of privacy for trans persons.160 Indigenous People As in all CANZUS nations, the concerted efforts of Church and State in the U.S. to erase the cultural identity of the indigenous population by assimilating them into mainstream American society started with the removal, cultural re-education and absorption of their children. Many tens of thousands of Indian children spent years in residential schools, away from their families and tribes, some never to return as they died and were buried in mass graves. The children were exposed to cultural indoctrination designed to immerse them in the language, basic numeracy/skills and Christian morality of their white Caucasian teachers and to shed their inherited cultural identity including their names, language, way of life etc. This policy resulted in a lengthy period of inter-generational trauma that compromised the authentic independent identity of Indigenous people, in the U.S. as in other CANZUS nations, and triggered many objections that must qualify as ‘conscientious’ because they engaged the sincere beliefs of Indigenous people protesting at the deliberate undermining of their culture.

6.7.1.2

Blasphemy and Proselytism

While there have never been any federal laws prohibiting blasphemy, probably all states at some time had such laws and although by now most have been repealed, they continue to be on the statute books in some states. Quite often repeal followed a court ruling in favour of a protestor claiming that the law violated their constitutional rights, some of whom were conscientious objectors.161 Where a law or ordinance of universal application unduly burdens the right of a minority to manifest their beliefs then the latter may well have justifiable cause for conscientious objection. This was the case in Watchtower Bible and Tract Society of New York v. Village of Stratton162 when the court considered town ordinances which made it a misdemeanor to engage in door-to-door proselytism without first National Center for Transgender Equality, ‘The Shifting Landscape of IDs for Trans People’, (2018), at: https://medium.com/transequalitynow/the-shifting-landscape-of-ids-for-trans-people97834478701a. 161 See, for example, Kalman v. Cortes, 7 23 F. Supp. 2d 766. 162 122 S. Ct. 2080 (2002). 160

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registering with town officials and receiving a permit. Jehovah’s Witnesses conscientiously objected, arguing that these ordinances violated their First Amendment right to canvass door-to-door as part of their religious belief that they should share the Gospel with others. The USSC agreed and stated that the ordinances were “offensive, not only to the values protected by the First Amendment, but to the very notion of a free society”.163 When the proselytism becomes harassment, as in Ng v. Jacobs Engineering Group,164 then the normal civil liberties of others will be upheld. In that case, an evangelical Christian, whose religious beliefs compelled her to share those beliefs with her co-workers in order to save them, persisted in using company equipment and facilities for religious proselytizing. When eventually fired, she filed a claim for religious discrimination—which was also a conscientious objection—protesting that her employer had failed to accommodate her religious beliefs and practices. The court found in favour of the employer: it considered that the company could potentially be liable for religious harassment claims by the plaintiff’s co-workers if she were allowed to continue her proselytizing; and held that Ms. Ng’s proselytizing violated the company’s policies on anti-harassment and e-mail use (see, further, below Sect. 8.5.2).

6.7.1.3

Whistleblowers

Those who speak out to disclose information or activities perceived as being prejudicial to the public good are deemed to be exercising rights enshrined in the freedom of expression provision in the First Amendment and are assured of additional protection under federal and state whistleblower laws. This was the first country to introduce public service protection for such activity—in 1978—and there are now some 60 different laws protecting whistleblowers in the private sector. Disclosures and the Law Federal—prohibited personnel practices—law, as supplemented by the Whistleblower Protection Enhancement Act 2012, prohibits the prosecution of employees who make a lawful disclosure of information they reasonably believe is evidence of a “violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety”.165 This legislation has been construed as protecting individuals’ right to conscience. For example, in Mgmt. Info. Techs. v. Alyeska Pipeline Serv. Co.166 whistleblowers were described as “employees who speak out

163

Ibid, p. 2087. See, also, Hare Krishna case. Super. Ct. No. BC320996, filed 10/16/06. 165 10 +5 U.S.C. § 2302(b)(8). 166 151 F.R.D; 1993. 390 F. Supp. 2d at 32. 245, p. 481. 164

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as a matter of conscience”. Moreover, the public’s interest in receiving information on matters of significant public concern is protected by the First Amendment. In a Public Service Context This indeed was the view expressed by the USSC in Pickering v. Board of Education167 which stated that protection would in particular be extended to public officials who would be “mostly likely to have informed and definite opinions”. As that court explained in Garcetti v. Ceballos168 the public has an interest “in receiving the well-informed views of government employees” adding that “First Amendment interests. . . extend beyond the individual speaker,” especially when the speaker reveals government misconduct. However, in practice an unauthorized release of information to the media is likely to be treated as a breach of confidentiality, perhaps amounting to a breach of national security, and those responsible may well face criminal proceedings. In the Garcetti case the fact that the information disclosure was made pursuant to the appellant’s duties as a deputy district attorney, rather than as a private citizen, was found to exclude him from First Amendment protection. Restricting such speech, which “owes its existence to a public employee’s professional responsibilities,” did not in the court’s view violate any rights that the employee had as a private citizen. Instead, the restrictions were simply the control an employer exercised “over what the employer itself has commissioned or created”. In a National Security Context Despite the judicial sentiments expressed in Pickering,169 the probability of criminal prosecution is considerably increased if the whistleblower is a government employee.170 This is only too well illustrated by the never-ending extradition proceedings issued by the U.S. government against Julian Assange for breaching the 1917 Espionage Act in his public disclosure of information about the Afghan and Iraq wars, Guantanamo Bay prison, and in relation to diplomatic communications between States.171 Whether Ellsberg, Manning or Assange and others can be considered to be wholly either conscientious objectors or treasonous criminals depends on whether the courts find the disclosures to be in the public interest and whether the primary intent driving their actions came from a sincerely held religion/ belief/conscience or from other motivation such as vengefulness (see, further, Sect. 2.3.2.1). Mention also needs to be made of serious contemporary instance of whistleblowing in a political context: the 2019 disclosure by an anonymous whistleblower alleging that President Trump had made a secret deal with the

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391 U.S. 563 (1968). 547 U.S. 410 (2006). 169 Pickering v. Board of Education, 391 U.S. 563 (1968). 170 See, for example, the different treatment of Daniel Ellsberg who leaked the ‘Pentagon papers’ in 1971 and United States v. Manning, 787 F. 2d 431 and the disclosure of military documents to WikiLeaks in 1986. 171 See, further, at: https://tribunemag.co.uk/2020/09/why-the-julian-assange-case-matters/. 168

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President of Ukraine requiring the latter to discover information that could be used discredit the former’s rivals in the 2020 U.S. presidential election. However, the absence of any known religious or beliefs dimension to the disclosure negates the possibility of it attaining the status of a conscientious objection.

6.7.2

Right to Freedom of Association/Assembly

“Implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends”.172 However, their exercise, in the context of ongoing and socially divisive culture wars, has at times been highly contentious. Collective action to express a conscientious objection has been a feature of a number of school and university based cases. An early case was Tinker v. Des Moines Independent Community School Dist.,173 which concerned students who had been suspended due to their refusal to remove armbands worn in conscientious objection to the Vietnam War. The court found that the suspension constituted school censorship of student expression which was unconstitutional unless the speech (as expressed by the armbands) “materially disrupts classwork or involves substantial disorder or invasion of the rights of others”. It added that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”. A later case, set in a context of associational rights, was Colín v. Orange Unified School District.174 This concerned the protest of Colin and fellow pupils that their rights under the Equal Access Act and their rights of expression and association under the First Amendment were violated when their wish to form a “Gay-Straight Alliance Club” at their high school was denied by the defendant school board; a denial which could reasonably be interpreted as one motivated by a conscientious objection to a perceived undermining of traditional religious values. According to the Mission Statement, the goal of the club was to talk about “tolerance,” “issues related to sexual orientation and homophobia,” the need to “treat everyone with respect,” and counterattacking “unfair treatment and prejudice”. Reminding the parties that in a free society we rely on the “marketplace of ideas”175 and of the danger that public education could transform schools into “enclaves of totalitarianism” and convert students into “closed-circuit recipients of only that which the State chooses to communicate,”176 the court found for the

172 Roberts v. United States Jaycees, 468 U.S. 609 (1984). Also, Board of Directors of Rotary International v. Rotary Club of Duarte (1987) 481 U.S. 537 (USSC) 539. 173 393 U.S. at 511, 89 S.Ct. 733, 21 L.Ed. 2d 731 (1969). 174 83 F. Supp. 2d 1135(C.D. Cal. 2000). 175 Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919). 176 Tinker, 393 U.S. at 511, 89 S.Ct. 733.

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plaintiffs and indicated the strong likelihood that the defendants had violated the Equal Access Act.

6.7.2.1

Corporate Entities

The freedom to associate is accompanied by a right to dis-associate: by definition a group is entitled to exclude those it perceives as not sharing its rationale for associating; the terms of reference for affiliating are intended to affirm common interests and be exclusionary of others. That a corporate entity—or a group of plaintiffs bringing a class action—can be construed as a single legal entity, imbued with a collective ‘conscience’—is a well established aspect of U.S. law. The range of entities entitled to claim recognition in law as representing a religion or belief—and thus, presumably, also entitled to assume conscientious objector status should the occasion arise—was potentially greatly enlarged in the landmark case of Hobby Lobby.177 This concerned a commercial company which was found to be so ‘closely held’ by its evangelical Christian family that it could be construed as an entity—‘a person’ in law—vested with the same beliefs as its owner, thus elevating any such ordinary commercial retail outlet to the same status as an institutional emanation of a religious organisation (e.g. a Catholic hospital). This entitled the corporation to claim, successfully, that the HHS contraception mandate in the Affordable Care Act substantially burdened its exercise of religion, within the terms of the RFRA. Consequently, the company was eligible for exemption—on grounds of religion/belief—from the obligation to provide contraceptive cover for its employees. The fact that the interests of the owners and employees were in conflict did not prevent the USSC from amalgamating all parties into a single, unitary identity and ascribing the religious beliefs of the owners to that entity, despite knowing that many of the employees did not share the beliefs of the owners, and some would be seriously disadvantaged by the latter’s assumption of responsibility for determining their interests. This decision, which seemingly reverses the disaggregation approach of human rights law and reverts to a more feudal ownership model, whereby the interests and identity of the servant were subsumed within that of their master who would answer for their role in society, seems a doubtful development and one which must impose constraints on the capacity for independent employee initiatives such as conscientious objection. Boy Scouts of America v. Dale178 is another illustrative case. It concerned the equality imperative, embedded in the Fourteenth Amendment and in the Civil Rights Act 1964, and was called upon to support an objection to the exclusionary policy of an association. The gay claimant protested against the refusal of a youth organisation to admit him, the latter responded that its refusal was grounded on a conscientious objection to his sexual orientation as it conflicted with the organisation’s traditional

177 178

Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682 (2014). 530 U.S. 640, 648.

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Christian based values. The court found that any association was entitled to define its purpose, set its terms of membership, and include or exclude accordingly: the freedom of association guaranteed by the First Amendment and the Fourteenth, protected the organisation from accepting the forced inclusion of an LGBT activist; his membership would be likely to infringe its freedom of expression by significantly compromising its capacity to give effect to its purpose for associating. Rehnquist CJ cited in support the earlier decision in Hurley,179 when the USSC concluded that a St. Patrick’s Day parade organised by a private association should not be compelled to accept an LGBT group which would be likely to represent a message it deemed to be at variance with its associative purpose (in effect, perhaps, ‘hijacking’ the parade).180 Both decisions were limited by the distinctive nature of the organisations involved—expressive associations—whose raison d’etre is to represent a particular set of ideas. There have been a number of cases triggered by the protest of students to the membership constraints imposed by university religious groups.181 One such was Christian Legal Soc. Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez,182 when the USSC upheld the right of a College of Law to prohibit the Christian Legal Society, a student organisation in the College, from restricting membership to those who signed a ‘statement of faith’ which permitted the exclusion of anyone who engaged in “unrepentant homosexual conduct”.

6.7.3

Right to Freedom of Religion

This fundamental right, enshrined in the Constitution and given specific protection by the First Amendment with its Free Exercise Clause, guarantees the freedoms of expression, assembly, association and religion. It is also present in a number of supra-national conventions to which the U.S. is a signatory, including the UDHR (Article 18), ICCPR (Article 18), UN CRC (Article 14), which it has not ratified, and the American Convention on Human Rights (Article 12). The USSC in Reynolds183 set an early benchmark for assessing the circumstances constituting a breach of the Free Exercise Clause and the parameters for a purported related conscientious objection in the context of the values of a democratic society. This case concerned George Reynolds, a Mormon residing in Utah, who challenged

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Hurley v. Irish-AmericanGay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995). A rationale not dissimilar to that which doomed the cause of the plaintiff gay couple in the UK case of Lee v. and Ashers Baking Co Ltd and others, [2018] UKSC 49. 181 Including: Gay Students Organization of University of New Hampshire v. Bonner, 509 F.2d 652, 660 (1974); Gay Alliance of Students v. Matthews, U.S. Court of appeals (4th Cir.), 1976; and Gay Student Services v. Texas A&M University, 737 F.2d, (1984). 182 Op cit. 183 Reynolds v. United States, 98 U.S. 145, (1879). 180

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his 1878 polygamy conviction under federal law by arguing that his marital practice was sanctioned by his religion. In rejecting his argument, the USSC distinguished between religious belief and religious conduct: while the right to the former was absolute, the government had a responsibility to curb religious conduct that conflicted with the broader interests of the community.184 It concluded that religious belief in itself was insufficient to exempt the believer from compliance with the law: “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself”. Many years later the same logic prevailed in S.D. v. M.J.R.185 when a Muslim husband was convicted of sexually assaulting his wife despite a plea that his beliefs negated the wilful intent necessary for him to have committed a crime. It was the introduction of the RFRA in 1993, however, that reinforced the protection available to those with religious beliefs from State interference in their affairs.186 This Act declares that the “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”.187 It may do so “only if it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest and . . . is the least restrictive means of furthering that compelling governmental interest”.188 Following its introduction the USSC developed a more affirmative approach towards defending religion specific customs which manifest sincerely held beliefs.189 Its decision in Gonzalez190 further strengthened the prospects for conscientious objection. It then ruled that in calculating whether a compelling interest was justified, the government should take into account the sincere belief of those likely to be affected: their subjective perception of what constituted a religious belief was to be the benchmark, which would vary from case to case.191 This approach, greatly strengthened by the Trump Administration’s encouragement of conscience protection rules for health care workers and for state ‘religious liberty laws’, was challenged in Barber v. Bryant.192 In this case, one party defended the Mississippi’s HB 1523 legislation as legitimising traditional religious beliefs and providing grounds of conscientious objection, while the other asserted that LGBT interests were being unduly burdened, 184

See, further, Pepper (1981), p. 309. 415 N.J. Super. 417, 427–29, 431 (N.J. Super. Ct. App. Div. 2010). 186 See, for example: Navajo Nation v. US Forest Serv., 479 F.3d 1024 (9th Cir. 2007); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal 546 U.S. 418 (2006); Cutter v. Wilkinson, 544 U.S. 709 (2005); Tenn. v. Lane, 541 U.S. 509 (2004); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); City of Boerne v. Flores, 521 U.S. 507 (1997); and Swanner v. Anchorage Equal Rights Comm’n, 513 U.S. 979 (1994). 187 42 U.S.C. § 2000bb-1(a). 188 42 U.S.C. § 2000bb-1(b). 189 See, Currier (2004). 190 546 U.S. 418 (2006). 191 See, Multi Denominational Ministry of Cannabis and Rastafari, Inc. v. Gonzales, 474 F. Supp. 2d 1133 (N.D. Cal. 2007). 192 860 F. 3d 345—2017. 185

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indeed subjugated, by the imposition of beliefs that discriminated against them as a class. The confrontation—which the USSC declined to consider—reflects the culture wars polarisation and became a precursor for other clashes in a succession of states as numerous similar ‘religious liberty laws’ were enacted.

6.7.3.1

Manifesting Beliefs

The constraints on manifesting beliefs—as distinct from holding them—were highlighted in Wisconsin v. Yoder193 when Burger CJ introduced the “compelling interest” test. The test has been subsequently judicially applied in a string of cases concerning the need of groups to publicly manifest their religion/belief: the ‘eruv’ cases, eagle feather cases etc.; some of which may well have been initiated as conscientious objections to legal constraints. For example, in Lukumi,194 when the right of Santeria adherents to practice ritual animal sacrifice was upheld and in the Eruv Association case195 where Ambro J found that as the borough had not enacted a genuinely general or neutral ordinance—it permitted a wide variety of attachments to utility poles for non-religious purposes, including posting signs and other items— it could not therefore selectively exclude attachments for religious purposes. Again, in Gonzales,196 the USSC ruled that the government—in prohibiting the importation of a sacramental tea, required for manifesting the beliefs of a Brazilian church—had failed to meet the burden imposed by the 1993 Act and demonstrate that its intervention served a compelling government interest; therefore the prohibition was invalid. In Cutter v. Wilkinson,197 a case involving five Ohio prison inmates with quite different belief affiliations (2 Norse pagans, a Wiccan witch, a Satanist and an evangelical Christian), the plaintiffs collectively and successfully claimed that their access to ceremonial items and opportunities for group worship was mandated under the Religious Land Use and Institutionalised Persons Act 2000. More recently and more on point, the USSC in American Legion v. American Humanist Ass’n et al198 considered a conscientious objection by humanists to a 32-foot tall Latin cross displaying the American Legion’s emblem at its centre, sitting on a large pedestal bearing, inter alia, a bronze plaque listing the names of 49 county soldiers who had fallen in the war. The complaint alleged that the

193

I9721406 U.S. 205. The Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 195 Tenafly Eruv Association v. Borough of Tenafly (309 F.3d 144), 2002. An ‘eruv’ being an urban area enclosed by a wire boundary which symbolically extends the private domain of Jewish households into public areas, permitting activities within it that are normally forbidden in public on the Sabbath. 196 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). 197 544 U.S. 709 (2005). 198 588 U.S._ (2019). 194

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Commission’s “ownership, maintenance, and . . . display of the cross on public property violate[d] the Establishment Clause”. The USSC dismissed the complaint, Justice Alito explaining that “established, religiously expressive monuments, symbols, and practices” enjoy “a strong presumption of constitutionality”.199 Religion Specific Clothing, Symbols, Customs Etc. Wearing religious apparel or other religiously indicative ornamentation is not in itself sufficient to breach the Establishment Clause.200 This issue came before the courts in Fraternal Order of Police v. Newark201 when two Muslim police officers conscientiously objected to a departmental rule requiring all officers to be cleanshaven which, they maintained, violated both their Islamic beliefs requiring that they be bearded and their First Amendment rights. The court upheld the latter claim. Again, in EEOC v. Abercrombie & Fitch Stores Inc,202 the policy of a clothing retailer to ban the wearing of the hijab generated conscientious objections from its Muslim staff and job applicants who were ultimately vindicated by the USSC.

6.7.3.2

Indigenous Beliefs

In the ‘eagle cases’ where Native Americans have claimed an entitlement, on grounds of religious belief, to hunt, keep or take the feathers of eagles in contravention of neutral laws of general application—the ‘compelling interest’ test requires proof either that the legislation does unduly burden any such practice or that, nonetheless, the government’s interest is sufficiently compelling to justify the restriction imposed. So, in U.S. v. Friday,203 where the defendant was charged with taking one bald eagle without asking permission from the Secretary of the Interior, he claimed that as a Native American he was exempt from the charges and even if the Bureau of Native Americans did not recognize him as such, the charges should still be dismissed as his actions were protected by the RFRA. The court, having analysed the RFRA claim and citing Gonzales, ruled in favour of the defendant, specifically noting that:204 The Government may be able to meet [the compelling interest burden], as the Tenth Circuit considered the protection of bald eagles to be [a compelling interest]. Nonetheless, the RFRA test is not satisfied by generalized assertions.

199

Ibid, p. 2085. See, also, Salazar v. Buono 130 S Ct 1803 (2010). See, further, the U.S. Equal Employment Opportunity Commission (EEOC), ‘Religious Garb and Grooming in the Workplace: Rights and Responsibilities’, at: https://www.eeoc.gov/eeoc/ publications/qa_religious_garb_grooming.cfm. 201 [1999] USCA 3 199;170 F 3d 359 (3rd Cir). 202 575 U.S. (2015). 203 2006 WL 3592952 (D. Wyo. Oct. 13, 2006). 204 Ibid, pp. 1–2. 200

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In U.S. v. Winddancer205 the defendant, charged with six separate counts relating to having eagle feathers in violation of federal statutes, claimed that as a Native American he conscientiously objected to government wildlife laws which violated his religious beliefs. While federal law allows Native Americans an exemption for their religious practices in keeping eagle feathers, the defendant was not part of a recognized Native American tribe and therefore was unable to show that the law burdened his practice of religion. At much the same time and on much the same issue the court in U.S. v. Tawahongva206 dismissed the claim of a Native American, charged with possessing golden eagles, that he was entitled to RFRA protection because he did not have standing to bring such a claim. It is interesting to reflect that the current state-by-state introduction of ‘religious liberty laws’, generating a nexus of conscientious objections for and against their assertion of traditional conservative Christian values, in fact originated in 1990s legislation introduced to protect the religion/beliefs of Native Americans. Affirmative Action In 1990, Laycock207 referred to what was then “the great national debate about affirmative action”, citing the very many cases208 and academic contributors to that debate, but now, 30 years later, equality caselaw in the U.S. unlike in Canada, has narrowed state affirmative initiatives to the point where they are very restricted in scope. Arguably, however, the Native American experience of affirmative action can be seen correlated with conscientious objection in cases such as Lukumi209 when the right of Santeria adherents to practice ritual animal sacrifice was upheld. In such circumstances where the State cannot demonstrate that the constraint is in furtherance of a compelling government interest, then the conscientious objection of that minority to being so burdened may—as was the case with the Santeria adherents and the sect involved in Gonzalez v. O Centro Espiritu210—be successful, with positively affirming consequences.

6.8

Conscientious Objection and Equality: Contemporary Caselaw

The proclamation in the Declaration of Independence that “all men are created equal” was the starting point for U.S. equality laws and this principle subsequently found endorsement in the Equal Protection Clause which states that “[n]o State shall

205

435 F. Supp. 2d 687 (M.D. Tenn. 2006). 456 F. Supp. 2d 1120 (D. Ariz. 2006). 207 Laycock (1990), p. 997. See, further, at: http://via.library.depaul.edu/law-review/vol39/iss4/3. 208 See, for example, University of California Board of Regents v. Bakke, 438 U.S. 265 (1978). 209 The Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 210 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). 206

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. . . deny to any person within its jurisdiction the equal protection of the laws”. This prohibits the government from subjecting individuals to “selective treatment . . . based on impermissible considerations such as . . . religion”.211 The Fourteenth Amendment declares that all Americans have “the right to be free from invidious discrimination in statutory classifications and other governmental activity”.212 Currently, in practice, many of the associated issues are litigated under the provisions of the Civil Rights Act of 1964, particularly under of Title VII of this federal statute, while each state has its own roughly similar framework of equality and non-discrimination laws.

6.8.1

Public Health

The Affordable Care Act, particularly s.1557 as amended by the 2016 HHS ‘Final Rule’,213 has been an important milestone in establishing equity of health care access especially as regards preventative services for women and treatment interventions for members of the LGBT community. The significance of that milestone was significantly reinforced by the USSC ruling in California v. Texas.214 Contemporary U.S. jurisprudence in this area would appear to be have several jurisdictionally distinctive characteristics: a wide range of entities are eligible to claim exemption, on grounds of religion/belief/conscience, from a legal duty to provide public health services; eligibility for such exemption may extend beyond those having a direct ‘hands on’ involvement to include others at some degree of remove; and the exemption entitlement need not be conditional upon a duty to ensure alternative service access by, for example, referring to another service provider. Moreover, the intervention of the Trump Administration in this field makes any related policy analysis an uncertain exercise, as illustrated by Engelmayer’s 2019 ruling that the HHS initiative permitting health-care workers to deny care based on their religious and moral beliefs was invalid and indeed that it might have been acting ultra vires in purporting to make substantive rules regarding the enforcement of laws in such matters.215

211 United States v. Carolene Products Company, 304 U.S. 144 (1938) at f/n 4. See, also, Knight v. Conn. Dep’t of Public Health, 275 F.3d 156, 166 (2d Cir. 2001) citing Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000). 212 Harris v. McRae, 448 U.S. 297, 322, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980). 213 See, Department of Health and Human Services (HHS), Final Rule, Nondiscrimination in Health Programs and Activities, at: https://www.hhs.gov/sites/default/files/1557-summary-508.pdf. 214 141 S.Ct. 2104 (2021). 215 New York v. U.S. Dep’t of Health & Human Servs., S.D.N.Y., No. 1:19-cv-4676, 11/6/19.

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Abortion, Contraception IVF and Surrogacy

It was in the U.S. that feminist activism first brought reproductive rights into open public debate. From at least the launch of the first birth control clinic by Margaret Sanger in 1914, the matter has consistently generated caselaw relating to conscientious objection. In no other country have reproductive rights been so vociferously disputed, so publicly, for so long and with such socially divisive consequences. Overhanging this acrimonious debate lies the shadow of a federal threat to de-fund those public health provider facilities that do not allow for service refusal on grounds of conscientious objection. Abortion Decades of pro-life/pro-choice confrontations, and the profound divisions between religious and secular principles, has resulted in a voluminous body of caselaw216 tracking a pattern of alternating victories and defeats notched up by pro-life and pro-choice protagonists which, as of late 2021, had essentially left intact the decision in Roe v. Wade217 that women have a constitutional right to abortion. Forty years after Roe, Justice Breyer acknowledged the depth of this enduring polarising controversy:218 Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.

All of which consolidated this most fundamental of the culture war battles into two mutually hostile camps: pro-life with exceptions; and pro-choice with restrictions. This settled state of affairs was recently disrupted and the abortion debate re-ignited by: the introduction of the Mississippi Gestational Age Act 2018, which sought to prohibit abortions after 15 weeks except for those necessitated by medical emergencies, but was blocked by the courts; and by USSC cases such as Whole Woman’s Health v. Hellerstedt219 and June Medical Services, LLC v. Russo.220 The latter both concerned the protests of a group of plaintiffs to the introduction of legislative measures, in Texas and Louisiana respectively, allowing the legal requirement for abortion availability to be met by providers having admitting privileges to hospitals within a 30 miles radius and, in addition, imposing expensive upgrading requirements on existing facilities (there were further constraints in the Louisiana legislation). The legislation would have resulted in the closure of most clinics in both 216 Including Rust v. Sullivan 500 U.S. 173, (1991) and Planned Parenthood v. Casey 505 U.S. 833, (1992). 217 410 U.S.113 (1973). 218 Stenberg v. Cahart, (99-830) 530 U.S. 914 (2000) 192 F.3d 1142. 219 579 U.S. _ (2016). 220 591 U.S. _ (2020).

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states, resulting in women seeking an abortion having to undergo considerable additional travel and expense. In both cases the USSC found that such measures placed restrictions on the delivery of abortion services, creating an undue burden for women seeking an abortion contrary to established law and were therefore invalid. However, in September 2021—following a USSC decision not to intervene—Texas introduced the statute SB 8 which effectively bans abortions after 6 weeks without any exceptions for raped women or for those with a foetus deformity. A significant feature of this statute is that it permits private persons a civil cause of action for $10,000 to sue persons they suspect of violating it: at a stretch, this could be construed as a financial inducement to a whistleblower or conscientious objector; in practice it fails on both counts as such a financial enticement would negate the necessary ‘conscience’ component, replacing it with something close to a ‘bounty hunter’ motivation. The USSC, in the pending Dobbs v. Jackson Women’s Health Organisation, will adjudicate on the constitutionality of the Mississippi legislation and in reaching a decision will determine the continued authority of the Roe and Casey rulings. This legislative approach is in keeping with a generalised resurgence of conservative values. In many states there are indications of increased difficulties in accessing abortion: by 2011, 87% of all counties in the U.S. were without abortion clinics; the New York Times reports that at least 275 clinics have closed since 2013; there have been many hundreds of prosecutions for ‘foetal endangerment’ and as of 2019 six states had criminalised self-induced abortions.221 One aspect of the pro-life/pro-choice stand-off is the resulting anxiety and fear suffered by service providers and potential users either within a clinic or accessing it. In the U.S., more so than in other countries, the anti-abortion protests can be intimidatory, violent and occasionally murderous, although they mostly take the form of silent vigils by conscientious objectors bearing placards proclaiming the evil of abortion. The USSC affirmed the right of pro-life activists to so protest in Scheidler v. National Organization for Women.222 Because such protests can be intimidatory, federal legislation—the Freedom of Access to Clinic Entrances Act 1994—as now replicated in several states, provides for safe zones that require unhindered access. Another aspect of the abortion confrontation is the development of Crisis Pregnancy Centres which present as independent medical service providers purporting to offer a full range of pregnancy services but in fact exclude abortion related advice and are often staffed by persons whose religious beliefs make them abortion adverse. An attempt to introduce regulatory legislation in California requiring the Centres to post information explaining that they are not medical providers together with a notice about the services provided by the state (including abortion), was met by a claim from plaintiff Centres that such legislation would effectively be requiring them to advocate for abortion services and constitute a violation of their First Amendment

221 222

See, further, Schwartz (2020), pp. 20–21. 547 U.S. 9 (2006).

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rights to freedom of speech and religious practice; the latter bearing strong conscientious objection overtones. This confrontation was eventually brought before the USSC—in NIFLA v. Becerra223—which decided, in a 5-4 decision, in favour of the Centres. The majority took the view that the requirement to post such a notice carries “the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information”. Because the legislation only applied to these Centres, it targeted “speakers, not speech,” and thus risked interfering with those speakers’ freedom of speech. This would seem to have removed the obligation—moral if not legal—to ensure that when a service provider denies provision, on grounds of conscientious objection, the user is then fully informed as to the choices available and referred to appropriate alternative providers. When the conscientious objector is not the service provider but someone seeking to obstruct that provider then legal proceedings inevitably follow. This is and has long been the set of circumstances typified by anti-abortion protestors obstructing free access to clinics.224 In Bray v. Alexandria Women’s Health Clinic, however, the USSC upheld the right of Bray and others to conscientiously object outside the clinic, reasoning that they were seeking to protect the victims of abortion (rather than obstruct access) and were not endeavouring to block interstate travel. Of particular importance for the future is the Conscience Protection Act 2019 which is stated to be an Act ‘to amend the Public Health Service Act to prohibit governmental discrimination against providers of health services that are not involved in abortion’. Contraception In the early case of Brownfield v. Daniel Freeman Marina Hospital,225 the applicant protested against a Catholic hospital’s conscientious objection to providing her with an emergency contraception following her rape, and sought an injunction ordering the hospital to provide this treatment. While ultimately ruling that no cause of action could be allowed because the treatment was neither fraudulent nor deceptive, the court reaffirmed that “no nonprofit hospital or clinic which is organized or operated by a religious corporation or other religious organization or its administrative officers, employees, agents, or members of its governing board shall be liable, individually or collectively, for failure or refusal to perform or to permit the performance of an abortion in such facility or clinic or to provide abortion services”;226 however, as the treatment consisted of “prevention” rather than “termination” in this case, the principle did not apply. In Catholic Charities v. Serio227 the

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No. 16-1140, USSC, (2018). Contrary to 42 U.S.C. 1985(3), which prohibits two or more people on a highway or on private property from depriving “any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws”. 225 (1989) 208 Cal. App. 3d 405. 226 Ibid, para 7a. See, also, Real Alternatives, Inc. v. Secretary Department of Health and Human Services (1997) 521 U.S. 507 (USSC). 227 (2006) 859 NE 2d 459 (NY Court of Appeals). 224

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requirement under the Women’s Health and Wellness Act 2002 that health insurance policies provide coverage for prescription drugs including contraception was the subject of institutionalised conscientious objection from the plaintiff (a group of ten faith based organisations providing a range of community health and social care services) who believed the requirement to be sinful. The statute had a ‘conscience clause’ providing exemption for “religious employers”, a definition the plaintiff organisations did not meet, but nonetheless they maintained they were constitutionally entitled to be exempt from the contraceptive provisions as the statute, being a “neutral law of general applicability,” imposed an undue burden on them contrary to their right of free exercise under the First Amendment. The court ruled against the plaintiff, holding that while the statute did burden their exercise of religion, that alone under Smith, could not call the validity of a generally applicable and neutral statute into question. In recent years the role of conscientious objection in relation to the issue of access to contraceptives228 has returned to the courts largely as a consequence of the preventative care provisions, particularly for women, in the Affordable Care Act and the response elicited from the Trump Administration. It has been argued, and subsequently proven correct, that: “U.S. Supreme Court jurisprudence undermines access to contraception by permitting individuals, institutions, and even corporations to claim religious objections to ensuring contraceptive insurance coverage, thus imposing those beliefs on non-adherents and jeopardizing their access to essential reproductive-health services”.229 Two aspects of access obstruction are particularly important: service provider right of refusal and employer right not to fund. In 2015, a federal appeals court ruled that pharmacists in Washington state would be denied the right to refuse, on grounds of conscientious objection, to provide contraceptives on prescription.230 Until that decision the Washington state Pharmacist Responsibility Rule—in keeping with similar rules in all other states—had exempted pharmacists from dispensing medication if they had religious, moral, philosophical, or personal objections to doing so, in which case they were required to refer the customer to another service provider. The USSC declined to hear an appeal against the appeals court ruling, which leaves Washington state curiously out of synch with all other states on this important issue.231 In the U.S. there has been a flow of cases in which religious employers have protested that to provide employees with a health plan that included contraceptives would be to impermissibly burden the employers religious beliefs.232 This included

228

See, further, Wicclair (2011). Shcvey and Kim (2018). 230 Stormans Inc. v. Wiesman, 794 F.3d 1064. 231 See, further, Card (2007). 232 Including Little Sisters Of The Poor Home For The Aged, Denver, Colorado, A Colorado Non-profit Corporation, et al., Applicants. v. Kathleen Sebelius, Secretary of Health and Human Services, et al. 134 S. Ct. 1022 (2014) and Burwell v. Holly Hobby Stores, Inc., 134 S. Ct. 2751, 2765 (2014). 229

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the above mentioned Hobby Lobby case233 as reinforced by the 2014 ruling in the six consolidated cases that constituted Zubik v. Burwell.234 In the latter, the USSC found that the HHS had validly created religious exemptions from the requirement of the Patient Protection and Affordable Care Act of 2010 that employer-provided health insurance must include contraceptive coverage but the divided court vacated all of the lower court decisions and remanded to give them a chance to work out compromises. For the most part, compromises did not occur because the Trump administration greatly expanded exemptions from the contraception mandate.235 By the time the USSC ruled in the last of the Little Sisters cases236 the courts had repeatedly considered whether forcing those who conscientiously objected on religious grounds to provide health plans that included contraceptive coverage violated the RFRA. Indeed the issue had been addressed by more than 150 judges, in scores of lawsuits, across ten different circuits, involving hundreds of religious organizations. The USSC then took the view that the RFRA exemption of religious objectors from providing health plans that include contraceptive coverage was a question of national importance:237 This case presents a question of profound and nationwide importance. There is no dispute that thousands of religious organizations throughout the country sincerely believe that complying with regulations requiring them to provide healthcare coverage that includes abortifacients and contraceptives via the regulatory mechanism violates their religious beliefs.

It concluded that religious organisations and others who object on grounds of religious belief cannot be forced to provide healthcare plans that include contraceptive coverage. IVF and Surrogacy In the U.S., more so than in most other countries presently being considered, IVF and surrogacy are matters very largely left to market forces and lightly regulated. Commercial surrogacy is legal in many states and disputes tend to be resolved in accordance with the parties contractual arrangements. The USSC in two recent cases, originating in Iowa and California, declined to hear appeals from gestational mothers, leaving intact the rulings of lower courts determined in favour of the commissioning parties on the terms as defined in their respective surrogacy contracts. In general, it may perhaps be safely said that while many conscientiously

233 Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682 (2014). See, also, Zubik v. Burwell, 136 S.Ct. 1557 (2016). 234 Zubik v. Burwell, op cit. as amalgamated with Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. _ (2020) and Trump v. Pennsylvania, 591 U.S. ___140 S. Ct. 2367. Also, see, Wheaton Coll. v. Burwell, 573 U.S._ (2014). For a full account of judicial proceedings see further at: https://www.supremecourt.gov/DocketPDF/18/18-1192/91895/201 90313152230556_No.-__%20Cert%20Petition%20only.pdf, pp. 4–15. 235 Author acknowledges advice from Fred Gedicks on this matter (note to author: 02.10.21). 236 Little Sisters Of The Poor Jeanne Jurgen Residence v. California et al, S.Ct. 2019. 237 Ibid, p. 17.

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object to the practice of commercial surrogacy, for the parties concerned in any particular arrangement the matter becomes one subject more to contract than conscience. SOGI Related Health Issues In this context, the case of North Coast Women’ s Care Medical Care Group, Inc., et al. v. San Diego County Superior Court238 is worthy of note. The California Supreme Court then unanimously ruled that doctors with conscientious objection to providing artificial insemination treatment for a lesbian—as to do so would violate their Christian beliefs—were not entitled to an exemption as the governing equality legislation was “a valid and neutral law of general applicability”239 and, therefore, it “need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice”.240 Consequently, “the First Amendment’s right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the Act’s antidiscrimination requirements even if compliance poses an incidental conflict with defendants’ religious beliefs”.241 Although clearly not a USSC decision, it is a significant ruling by a superior court which, after explicitly weighing equality law requirements against the right of conscientious objection, in relation to publicly available services, determined that the providers did not have a right of veto. The North Coast case was later cited in Minton v. Dignity Health,242 which concerned the refusal of Dignity Health medical centre to permit the plaintiff’s doctor to perform a hysterectomy on him at one of its hospitals because of his sexual identity. The court then reiterated that the “guarantee of free exercise of religion does not exempt physicians from conforming their conduct to the Act’s antidiscrimination requirements even if compliance substantially burdens their religious beliefs”.243 Again, it was held that there had been a failure to provide full and equal access to medical procedures without regard to gender. The Court of Appeal confirmed that it is illegal discrimination for a hospital to deny someone care simply because they’re transgender.

6.8.1.2

Medical Practitioners and Assisted Death

This is an area which gives rise to conscientious objections from several different aspects.

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44 Cal. 4th 1145, (2008). As per Employment Div., Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872, p. 879. 240 As per Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 531, p. 531. 241 44 Cal. 4th 1145, (2008), para. 3. 242 39 Cal.App.5th 1155 (2019). 243 North Coast, p. 1158. 239

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Suicide As of 2020, in the vast majority of states the law continues to uphold the sanctity of life, prohibits suicide and assisted suicide and in some it criminalises anyone who provides or attempts to provide any such assistance. Refusing Medical Treatment The well established right of an adult to make an informed decision to refuse medical treatment was re-affirmed by the USSC ruling in Mills v. Rodgers244 which concerned a complaint from a number of patients in a psychiatric hospital that as autonomous adults they had the right to refuse the compulsory medication administered by hospital staff. The latter countered by claiming that medication was compulsorily administered only rarely in emergency situations and that anyway, by definition, the patients were not competent to decide if and when such medication was required. The court proceedings concluded with findings which included confirmation that a person competent to make treatment decisions should always have an absolute right to refuse such medications. This right extended to a refusal of treatment vital for sustaining life, a decision made in the full knowledge that as a consequence death might be unavoidable. The exercise of this right, a fundamental aspect of personal liberty, is based upon respect for an autonomous adult to choose to live or die in accordance with their beliefs, subject only to a countervailing compelling interest of the State.245 Medically Assisted Voluntary Death As of late 2021, a total of 11 states had introduced legislation permitting medically assisted death. The caselaw leading to this point has been protracted with milestone cases established by conscientious objectors for and against this emotive issue. In the relatively early case of Curzon246 the USSC considered the protest of parents, on behalf of their daughter who was hospitalised in a permanent vegetative state, to the refusal of medical staff—on conscientious objection—to withdraw life sustaining treatment. The court ruled that while there was no constitutional right to suicide, there was a fundamental right to refuse medical treatment. Subsequently, in Glucksberg,247 it found that while the Due Process Clause gives a terminally ill individual the right to commit suicide, it does not confer a right to medical assistance in doing so; and that the state’s assisted suicide ban was unconstitutional because it placed an undue burden on the exercise of that constitutionally protected liberty interest. In Gonzales,248 a case brought by petitioners with strong conscientious objections to Oregon’s Death With Dignity Act, the USSC held the law to be

244

457 US 291 (1982). See, for example, Georgetown College Inc., 377 U.S. 978, (1964) and Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, (1977). 246 Curzon v. Director, Missouri Dept of Health, 497 U.S. 261 (1990). 247 Washington v. Glucksberg, 521 U.S. 702, (1997). 248 Gonzales v. Oregon, 546 U.S. 243 (2006). 245

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constitutional and that physician-assisted suicide had a “legitimate medical purpose”—a decision that paved the way for five other states to enact similar provisions. Capital Punishment Whereas in all other common law jurisdictions currently being considered ‘assisted death’ refers to deaths anticipated as a voluntary and solicited end to suffering, in the U.S. it also refers to mandatory capital punishment for serious crimes. In the latter case, the Federal Execution Protocol249 contains a ‘conscience clause’ permitting physicians, nurses and prison employees the right to refuse—on the basis of conscientious objection—to participate in executions (Refusal to Participate in Executions or in Prosecution of a Capital Crime). It also exempts employees in the Department of Justice, the Federal Bureau of Prisons, or the United States Marshals Service who object to capital punishment for reasons of conscience from being forced to participate in an execution or even in a prosecution for a capital offence.

6.8.1.3

Blood and Organ Donations

The legacy of the AIDs epidemic, centred on California in the 1980s and 1990s, continues to restrict acceptance of blood donations from non-heterosexuals and to overshadow organ transfer. Organ donation can trigger conscientious objections from next-of-kin as well as from medical practitioners.

6.8.1.4

Vaccination

More than a century ago the USSC made two rulings that influenced subsequent public health management and may yet prove to be of particular relevance in the current pandemic: in Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, it concluded that the state could enact and enforce quarantine laws to quarantine an entire geographical area unless Congress intervened; and in Jacobson v. Massachusetts250 it held that a state could authorise a mandatory universal population vaccination programme. More recently, in Klassen v. Trustees of Indiana Univ,251 the court upheld a state university’s vaccination mandate (which included medical and religious exemptions). Justice Barrett refused an emergency motion to stay the decision pending Supreme Court review, which suggests that the Jacobson ruling remains binding. Since then, the type of vaccination, the grounds for claiming exemption and the extent to which exemption may be granted, have varied somewhat across the states. Most common has been the state requirement that a child receive the MMR and 249

See, further, at: https://www.justice.gov/opa/pr/federal-government-resume-capital-punishmentafter-nearly-two-decade-lapse. 250 197 U.S. 11 (1905). 251 No. 21-2326 (7th Cir. 2021).

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regulations mandate that children cannot attend school if they are not so vaccinated. Currently, all 50 states mandate child immunisation as a condition for public school enrollment but the specific vaccines required differ and various exemptions are available depending on the state. Healthcare workers are also required to vaccinate. In early April 2020, an outbreak of measles in Brooklyn, New York led city officials to make a compulsory vaccination order covering named districts. As of that year, all states except for California, Maine, Mississippi, New York, and West Virginia allow religious exemptions, while sixteen allow parents to cite personal, conscientious, philosophical, or other objections and some (e.g., Michigan) have made exemptions difficult to obtain by requiring parents to attend immunisation education courses. Law, Government and Vaccination in the Covid 19 Pandemic Conscientious objection on grounds of religion or other belief is a significant factor in vaccination refusal. The prospects for a low uptake of vaccination against Covid 19, imperilling the health of the nation and conceivably that of others, was revealed in the 2021 survey by the Kaiser Family Foundation which found that only 41% of adults would accept a free covid vaccination. By virtue of the 10th Amendment and many USSC decisions over the past 200 years, states retain the “police power”, the traditional authority to legislate to protect the health, safety, welfare, and morals of the people. This includes authority to control the spread of dangerous diseases within their jurisdictions. The 10th Amendment gives them all powers not specifically reserved to the federal government, allowing them to introduce public health emergency actions, such as setting quarantines, mandatory vaccination and business restrictions. They can, for example: order quarantines to separate and restrict the movement of people exposed to a contagious disease; direct that those who are sick with a quarantinable communicable disease self-isolate; and, order residents to stay at home with exceptions for essential work, food or other needs. Curfews may also be introduced. The scope for exemption on grounds of conscientious objection was outlined in Farina v. Board of Educ of City of New York:252 the statutory exemption is for persons whose opposition to immunizations stems from genuine and sincere ‘religious’ beliefs, it does not extend to persons whose views are founded upon, for instance, ‘medical or purely moral considerations’253 ‘scientific and secular theories’, or ‘philosophical and personal’ beliefs.254

The federal Public Health Service Act 2020 now authorizes the secretary of Health and Human Services to lead federal public health and medical responses related to public health emergencies. Conversely, however, employees have the right to request accommodations as well as medical or religious exemptions from mandatory

252

(2000) 116 F Supp 2d 503 (Dist Court) 507. Ibid, citing Sherr v. Northport–East Northport Union Free School Dist., 672 F.Supp. 81,92 (E.D.N.Y.1987). 254 Ibid, citing, Mason v. General Brown Cent. School Dist., 851 F.2d 47, 51–52 (2d Cir.1988). 253

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vaccines under federal anti-discrimination laws, such as the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1964. Not until January 2021 was a mechanism established—the COVID-19 Response Office—responsible for implementing the National Strategy for the COVID-19 Response and Pandemic Preparedness and for coordinating the pandemic response across all federal departments and agencies. In the meantime, in the absence of any federal initiative, all states chose to offer vaccination on a voluntary basis, though some introduced incentive schemes to encourage the hesitant. More recently there has been a move towards state introduction of vaccine mandates: New York being the first to do so by requiring evidence of vaccination in order to access indoor venues such as restaurants, gyms and theatres; but increasingly many private U.S. businesses, state bodies, universities255 and airlines began making service access conditional upon evidence of vaccination. However, such is the polarisation in U.S. society that a counter movement was also emerging: by mid-2021 legislators in a number of states were drafting bills to prohibit vaccine mandates in an attempt to give vaccine refusal the same status and legal protection as awarded to gender and racial equality, freedom of religion etc.256 As of Autumn 2021, while this had generated much protest it had not produced conscientious objection cases though the probability of such was steadily growing.

6.8.2

Social Care Services

The scope for conscientious objection is as varied as the range of social care services and the capacity for the resulting actions or inactions of a few to endanger the wellbeing of many has never been so apparent.

6.8.2.1

Adoption and Foster Care

As in all other developed countries, the number of children entering the U.S. public care system has been steadily increasing: from 396,000 in 2012 there was an 11% increase to 442,995 in 2017 and a further slight increase to 443,000 in 2019.257 For the many children who cannot return to their families of birth, the preferred exit strategy is a transfer to an alternative family via either adoption or foster care. The shortfall in capacity—in terms of approved adopters and foster parents—available to undertake permanent care responsibility for such children, who most often have

255

See, for example, Klaassen v. Trustees of Indiana University, No. 21-2326 (7th Cir. 2021). See, further, at: https://www.theguardian.com/world/2021/jul/16/republicans-covid-19-vaccinerefusal-legal-protections. 257 See, The AFCARS Report, Preliminary FY1 2017 Estimates as of August 10, 2018—No. 25, at: https://www.speakupnow.org/foster-care-statistics-resources/. 256

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complex psycho-social health care needs, has been supplemented over the past decade by unmarried couples, single persons and by married and unmarried members of the LGBT community. A 2018 study by the University of California’s Williams Institute found that 21% of U.S. same-sex couples had adopted children and 3% had fostered—a rate seven times that of heterosexual couples. While applications to foster or adopt from same sex couples no longer present any problems in law, they have given rise to serious difficulties in relation to government funded religious service provider organisations responsible for adoption and foster care services. Service Refusal The resulting difficulties are well illustrated by the travails of the Catholic Charities adoption agencies.258 State administrators had required Catholic Charities, because it accepted public funds, to provide adoption and foster-care services to same-sex couples in the same manner that they serviced different-sex couples. Rather than comply, Catholic Charities closed most of its Illinois affiliates forcing the state to transfer more than 1000 children from the charity’s custody to secular agencies. This organisation and other Catholic agencies have had similar experiences across the country as have same sex applicants.259 Such faith based conflicts between government funded service provider and foster care applicant are by no means confined to Catholic agencies and same sex carers as illustrated by the South Carolina case involving the Miracle Hill (an exclusively Protestant Christian foster care agency) refusal of Jewish applicant foster carers. The many cases appearing before the courts tend to feature a plaintiff whose protest at being a victim of discrimination is rebutted by a respondent claiming their actions are mandated by their beliefs. A typical and very representative case was that of Sharonell Fulton et al. v. City of Philadelphia260 which questioned whether government can be forced to give taxpayer funding to faith-based organizations that provide government services in ways that discriminate against LGBTQ people. This concerned Catholic Social Services and its government contract to provide services to foster youth, including screening foster parents. When the city learned that CSS intended to continue applying its religious screening criteria—refusing to certify same-sex couples—the city declined to renew its contract, prompting CSS to then sue the city. The plaintiff, an experienced but now unemployed CSS foster parent, unsuccessfully claimed to be the victim of unfair discrimination as a consequence of the city’s action. Her appeal— grounded on her Catholic religious beliefs and therefore clearly definable as a conscientious objection—was upheld by the USSC in June 2021.261 In a unanimous ruling, delivered by Roberts CJ, the court held that Philadelphia’s refusal to use Catholic Social Services for foster care services unless it agreed to certify same-sex 258

See, also, the Little Sisters of the Poor line of cases. See, for example: New Hope Family Servs. v. Poole, No. 19-1715-cv, (2020); Dumont v. Lyon, 341 F. Supp. 3d 706, (2018); and Buck v. Gordon, No. 19-1959 (6th Cir. 2020). 260 320 F. Supp. 3d 661. 261 Fulton v. Philadelphia, 593_U.S. (2021). 259

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couples as foster parents violated the Constitution’s First Amendment guarantee of the free exercise of religion. As Roberts CJ explained: “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else”. Whether this determination opens the door to overturn the Smith decision262 remains to be seen but, if so, that would radically strengthen the ‘institutional conscientious objection’ of religious entities in the U.S. This significant ruling may lend added weight to the Esau argument263 that democratic society should make room for “islands of exclusivity”, permitting religious spheres of influence to function separate and ungoverned by the levelling effect of equality and non-discrimination laws.264

6.8.2.2

Social Care Facilities and Benefits

Social care services—such as day care for pre-school children, the elderly and the disabled—provided by religious organisations have been negatively impacted by equality law. So, for example, Spencer v. World Vision Inc265 concerned a Christian humanitarian organisation that provided overseas aid to children, families and communities in need and was heavily funded by government. It terminated the employment of three staff because they had ceased attending daily devotions and weekly chapel services held during the workday and because they had denied the deity of Jesus Christ. The objections of the staff concerned can be seen as conscientious as they were based on a sincere belief that they had been ill treated solely because of World Vision’s Christian values. Their claim of unfair dismissal ultimately failed as the court ruled that even though World Vision was not a traditional house of worship, it was entitled to the institutional religious liberty accommodation: as a “religious corporation” it qualified for exemption from equality and non-discrimination constraints. In Dodge v. Salvation Army266 the court ruled that a Salvation Army Domestic Violence Shelter was wrong to terminate the employment of a counsellor because of her religious beliefs. As the employing religious corporation was in receipt of substantial government funding it was not entitled to rely on the exemption normally available to such bodies from laws prohibiting religious discrimination. This ruling must now be viewed in the light of the ‘liberty laws’ and bearing in mind the remit of the newly established Conscience and Religious Freedom Division of the HHS.

262

Employment Division v. Smith, 494 U.S. 872. Esau (2000), p. 719. Also, see, Esau (2009–2010), p. 389. 264 See, for a fuller analysis, Lupu and Tuttle (2021). 265 No. 08-35532, 2011 WL 208356 (9th Cir. Jan. 25, 2011). 266 1989, WL 53857 (S.D. Miss). 263

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6.8.2.3

285

Public Officials: Marriage Registrars Etc.

A singular characteristic of the law relating to public officials in the U.S. is the latitude explicitly given to accommodating their possible objections to undertaking duties perceived as compromising their consciences. Marriage Registrars The considerable independence enjoyed by states in legislative matters is illustrated by the difference in their approach towards the refusal of registrars—on grounds of conscientious objection—to officiate at marriages of same sex couples. After samesex marriage became available nationwide in 2015, Kim Davis—a marriage commissioner in Kentucky—attracted global attention for refusing to issue marriage licenses to same-sex couples (for which she spent time in jail).267 In Mississippi, the ‘Protecting Freedom of Conscience from Government Discrimination Act’268 allows state employees, authorised or licenced to officiate at such marriages, to recuse themselves in advance because of their sincerely held religious beliefs. While this is not subject to any specified referral procedure, those so exempted are required to ensure that any ‘legally valid marriage is not impeded or delayed as a result of any recusal’. Both Utah269 and North Carolina270 have had such legislative provisions in place for some time and indeed other states that have legalised same sex marriage have also legislated for similar exemptions. However, as of 2020, it remains the case that while most states have legalised same sex marriage, many have not provided exemptions for those registrars with conscientious objections. Other Public Officials In Rodriguez v. City of Chicago,271 although the police officer complainant had stated his conscientious objection to abortion—based on his religious beliefs—to his superiors, and asked not to be assigned to abortion clinic protection duties, a personnel shortage caused him to be so assigned which he accepted under protest. The ensuing litigation concluded with his complaint being dismissed as the court found that under Title VII the prohibition against religious discrimination was restricted to those “aspects of religious observance and practice” that an employer is able to “reasonably accommodate . . . without undue hardship on the conduct of the employer’s business”.272 It determined that the city had acquitted itself of the Mahita Gajanan, “Gay Man Denied Marriage License by Kim Davis Loses Bid to Challenge Her for Kentucky Country Clerkship”, Time (22 May 2018) online: . 268 Miss HB 1523 (2016) as upheld in Barber v. Bryant 860 F 3d 345 (5th Cir 2017). 269 Utah SB 297 (2015). 270 NC SB 2, Session Law 2015-75 (2015) as upheld in Ansley v. Warren 861 F 3d 512, 517 (4th Cir 2017). 271 975 F. Supp. 1055 (1997). 272 42 U.S.C. § 2000e(j). See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 & n. 1, 107 S. Ct. 367, 369 & n. 1, 93 L. Ed. 2d 305 (1986). 267

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“responsibility to make a reasonable accommodation of Rodriguez’s religious belief or to show that any accommodation would result in undue hardship” by rules that allowed any officer to request a transfer to another district with no loss of pay or seniority. Rodriguez, being aware that this accommodation existed, could have availed of that option as a means of resolving the conflict between his conscientious objection and his contractual duty, but he chose otherwise.

6.8.3

Public Education

The State must hold a neutral position in relation to the diverse cultural groups accommodated within the public education system: guarding against any preferential channelling of State funds towards schools of a particular denomination; while simultaneously guarding against any separatist tendencies that could lead to segregation in any form.273 Twenty years ago, in Zelman v. Simmons-Harris,274 a conscientiously objecting collective led by Simmons-Harris challenged the government distribution of tuition payment vouchers for pupils which provided their parents with a wider choice of school than they otherwise would have had, and which most used to access religious schools. The collective argued that the program violated the Establishment Clause of the First Amendment as the government “could not pay tuition for students to attend religious school”. However, the USSC ruled that the program did not violate the Establishment Clause because all schools were being treated equally. As Gedicks puts it “the aid to private schools is constitutional because, in part, parental choice acts as a circuit breaker cutting off the State’s ability to allocate the aid directly”.275 The point of allowing parents to use public money to send their children to private schools was to enable parents in poor areas with failing public schools to get a better education for their children. The fact that in practice most used their vouchers to transfer to religious schools was incidental: they were entitled to make that choice; it did not mean that government was funneling public dollars to religious institutions. Federal control of school support funding provides a strategically important means of ensuring state level school policy appropriately accommodates religion/ culture. Conscientious objections from those who would like to see a greater proportion of that funding directed towards promoting independent schools with a religious identity is now growing exponentially. The complexities involved in ensuring that the flow of State funding is not prejudicial to religious communities per se, or to any in particular, were illustrated in Trinity Lutheran276 which concerned a policy of denying grants to any applicant

273

Brown v. Board of Education, 347 U.S. 483. 536 U.S. 639. 275 Note to author: 02.10.21. 276 Trinity Lutheran v. Comer, 582 U.S. (2017). 274

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owned or controlled by a church. The USSC found that to do so violated Trinity’s rights under the Free Exercise Clause as it denied the Church an otherwise available public benefit on account of its religious status. The USSC reaffirmed that approach in the recent Espinoza ruling,277 which concerned a state constitutional provision barring funding for a state program providing tuition assistance to parents who send their children to private schools. The court found that the state had discriminated against those schools—which in practice are religious—by denying religious families and their access in violation of the Free Exercise clause. In practice, particularly during the Trump Administration, the increasing politicisation of the national education system—by means such as channeling federal funds through voucher schemes and the Paycheck Protection Programme to charter schools—is perceived as disproportionately favouring religious schools, triggering objections from public school supporters. This particular religion/government interface is likely to go on generating similar clashes—which could be construed as including conscientious objections from many of the parents involved—for some time to come.

6.8.3.1

Schools, Teachers and Parents

The right of parents to conscientiously object to their children being exposed to an unwanted religious influence in the classroom setting was endorsed by Brennan J in Edwards.278 Religion Specific Clothing: Teachers A good deal of state legislation explicitly prohibits teachers from wearing religious apparel in classrooms: the linking of private religious belief to the authority of a public service representative being viewed as compromising for the neutral status of a state school and possibly constituting inappropriate proselytism. It is a rule matched by a large volume of teacher cases initiated by teachers conscientiously objecting to the imposition of a universally applicable rule that allegedly unduly burdens their need to manifest their religious identity.279 United States v. Board of Educ. Sch. Dist. Phil,280 for example, was not untypical of many involving the wearing of religious apparel, usually by Muslim female teachers, in public schools, contrary to directives such as that “no teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or

277

Espinoza v. Montana, 140 S. Ct. 2246, (2020). Edwards v. Aguillard, 482 U.S. 578, 107 S Ct 2573, 96 L.Ed.2d 510 (1987), p. 584. Also, see, Grand Rapids School District v. Ball, 473 U.S. 373, 105 S Ct 3216, 87 L.Ed.2d 267 (1985). 279 See, for example, Bhatia v. Chevron USA Inc., 734 F.2d 1382,1384 (9th Cir.1984) and EEOC v. Sambo’s, 530 F.Supp. 86, 89–90 (N.D.Ga.1981). 280 United States v. Board of Educ. Sch. Dist. Phila., 911, F.2d 882 (3d Cir. 1990). 278

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adherent of any religious order, sect or denomination”.281 This case concerned a Muslim teacher who worked as a substitute and full time teacher in the Philadelphia School District and, in accordance with her beliefs she wore a hijab while teaching. Having been refused the opportunity to teach in a succession of state schools, because of her religious clothing, she initiated proceedings alleging religious discrimination. The court, finding that the statute explicitly discriminated against certain practices precisely because they were religious, followed the rationale developed in the earlier and very similar Cooper case282 in which the plaintiff was a Sikh teacher who wore white clothes and a white turban and whose teaching certificate was revoked when she continued doing so despite repeated warnings. In that case the findings of the Oregon SC—that “a rule against such religious dress is permissible to avoid the appearance of sectarian influence, favoritism, or official approval in the public school”283—were left unchallenged by the accepted by the USSC which dismissed the appeal.284 Religion Specific Clothing: Pupils Many cases concern pupils in public schools wearing religion specific clothing. In part, this is attributable to the bearing of established caselaw precedents upholding children’s right to freedom of expression.285 Hearn and United States v. Muskogee Public School District,286 for example, concerned a Muslim girl with a conscientious objection to the school policy of religious anonymity who was suspended twice from school for wearing a hijab as required by her faith but the court ruled that she was entitled to do so. The school authorities, by singling her out because of her Islamic faith, had intentionally discriminated against her and the court quoted from the ruling in Lukumi that “at a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs.”287

281 Section 4(a) of what is commonly referred to as Pennsylvania’s Garb Statute 1895. But note the decision of the Supreme Court of Pennsylvania in Hysong v. Gallitzin, 164 Pa. 629, 30 A. 482 (1894) which held that there was no barrier to garbed Catholic nuns and priests teaching in public schools. 282 Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (1986). 283 Ibid at 723 P.2d, p. 308. 284 The rationale for the dismissal is explained by the Third Circuit in footnote 33 of Tenafly Eruv Association v Borough of Tenafly,155 F. Supp. 2d 142 (D.N.J. 2001) (author acknowledges advice from Gerald Neuman on this matter: note to author, 17.09.21). 285 See, for example: Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), pupils wearing black armbands to signify dissapproval of Vietnam war; Chalifoux, 976 F.Supp. 659 (1997), high school students wearing white rosary beads to signify their Catholicism; and Alabama and Coushatta Tribes v. Big Sandy Schools District et al, 817 F.Supp. 1319 (1993), Native American school children with long hair to signify tribal identity. 286 020, No. Civ. 03 598-S (E.D. Ok., 2003). 287 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. (1993), p. 532.

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Prayers, Symbols and Religious Ceremonies The USSC has ruled that a requirement to declare a belief in God violated the First and Fourteenth Amendments,288 a principle that applies to prayers or other religious ceremonies in State schools289 and one that has generated many School Prayer cases.290 Most recently this much litigated issue returned to the courts in Butler v. Smith County Board of Education291 which concerned the conscientious objections of two atheist families to the exposure of pupils, including their children, to sustained religious practices in their local school. They alleged that for several years’ school officials had regularly incorporated prayer into school events and proselytized students in violation of the Establishment Clause. The activities were reported to include: mandatory prayer during assemblies; the distribution and display of Bibles during classes; Bible verses posted in hallways and shared in notes from school staff to students; prayers broadcast through loudspeakers at school sporting events; coaches leading or participating in prayer with student athletes; and a large cross painted on the wall of a school athletic facility. The court found for the claimants and issued a permanent injunction prohibiting the unconstitutional imposition of religion on students. SOGI Related Issues The early and landmark case of Nabozny v. Podlesny292 concerned a gay pupil who after enduring many years of victimisation at school because of his sexual orientation sued the school arguing that his rights under the Fourteenth Amendment to equal protection and due process had been violated by the school’s failure to protect him as a member of a discernible minority group, namely gay people. To the extent that the school’s failure reflected its traditional religious values, its inaction could be viewed as representing its conscientious objection to a perceived threat to those values. In giving judgment in favour of the plaintiff, Judge Eschbach found that the latter had not only suffered discrimination but that the discrimination was based on his membership of a definable class293 and pointed to the failure of the school authorities to provide an environment that affords equal protection for all groups of pupils: The question is not whether they are required to treat every harassment complaint the same way: as we have noted, they are not. The question is whether they are required to give male and female students equivalent levels of protection; they are, absent an important governmental objective, and the law clearly said so.

288

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). McCollum v. Board of Education 333 US 203. 290 See: Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992); Wallace v. Jaffree, 472 U.S. 38 (1985); Sch. Dist. v. Schempp, op cit; and Engel v. Vitale, 370 U.S. 421 (1962). 291 (2:19-cv-00091), (2020). 292 92 F.3d 446, (1996). 293 As per Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992), aff’d, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) and Falls v. Town of Dyer, 875 F.2d 146, 148 (7th Cir.1989). 289

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The use of school bathrooms has been an ongoing issue for many. The case of G. G. v. Gloucester School Board,294 which concerned protests for and against a trans student using a bathroom in accord with acquired gender identity rather than sex at birth can again, perhaps, be seen as an extension of conscientious objection to a perceived threat to the school’s traditional religious values. It led to the Fourth Circuit ruling that ‘sex’ included ‘gender identity’ and that by denying the student access to appropriate facilities the defendants had discriminating against him contrary to the Title IX prohibition. The subsequent USSC hearing, which was to consider whether ‘sex’ in Title IX and ancillary regulations allowing for sex-specific facilities did in fact encompass ‘gender identity’ was overtaken by events as in February 2017 the Trump administration rescinded the Obama administration’s guidance that had allowed the use of bathrooms that corresponded to gender identity.295 The matter was returned to the 4th Circuit with the definitional issue left judicially undetermined.

6.8.3.2

Educational Content

A considerable body of caselaw, much of it generated by conscientious objectors, upholds the policy of insulating public schools from religious influence: Edwards v. Aguillard,296 invalidating mandatory teaching of creationism; Stone v. Graham,297 invalidating mandatory display of the Ten Commandments; Epperson v. Arkansas,298 invalidating prohibition on teaching evolution; McCollum v. Bd. of Educ.,299 prohibiting in-class sectarian religious instruction; and Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,300 where it was noted that “the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of State power may place on religious belief and practice”. More recently the courts have for example: ordered the removal of stickers placed on science books stating that “evolution is a theory, not a fact”;301 and ruled that an “Intelligent Design Policy” requiring teachers to inform students of the “gaps/problems in Darwin’s Theory,” and to introduce “other theories of evolution including, but not limited to,

294

822 F.3d 709 (4th Cir. 2016). News release, “U.S. Departments of Justice and Education Release Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students,” U.S. Department of Justice, May 13, 2016, at: https://www.justice.gov/opa/pr/us-departments-justice-and-education-release-jointguidance-help-schools-ensure-civil-rights. 296 482 U.S. 578 (1987). 297 449 U.S. 39 (1980). 298 393 U.S. 97 (1968). 299 333 U.S. 203 (1948). 300 512 U.S. 687, 705 (1994). 301 Selman v. Cobb County School District, 449 F.3d 1320 (11th Cir. 2006). 295

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intelligent design,” violated the First Amendment.302 Alongside there have also been USSC rulings to the effect that impartial teaching about religion “when presented objectively as part of a secular program of education” is not to be discouraged and warning that the public school system must not be used to preach the “religion of secularism”.303 SOGI Related Curriculum Content The 1964 Civil Rights Act, as amended by the Civil Rights Restoration Act 1987— specifying that recipients of federal funds, including all schools, must comply with civil rights laws in all areas—and subject to the provisions of equality and non-discrimination law provides the governing framework for determining curriculum content.304 It is clear that the overall effect is to require inclusion, if to an uncertain degree, of SOGI related educational material. As of 2019, it has been reported that while the inclusion of such content has been mandated in five states, it has been prohibited in ten.305 To date this matter has been spared much judicial attention—relative, for example, to Canada—but given the salience and content of the cultural wars it can be anticipated that a considerable volume of conscientious objections will be generated for and against inclusion of SOGI related in the classroom.

6.8.3.3

Faith Schools

The USSC has often upheld the principle that parents have the fundamental right to direct the education and upbringing of their children.306 This gave rise to the most notable conscientious objection case in an educational context when it ruled that Amish parents were wrongly penalised for refusing to send their children to high school when they had “deep religious convictions” for not doing so.307

302

Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (2005). Abington v. Schempp 374 U.S. 203 (1963), per Justice Clark. 304 The pending Equality Act will provide further enforcement for inclusion of SOGI related material in teaching materials. 305 See, Jones, A. and Kao, E., ‘Sexual Ideology Indoctrination: The Equality Act’s Impact on School Curriculum and Parental Rights’, Backgrounder, No. 3408 | May 15, 2019, at: https://files. eric.ed.gov/fulltext/ED595103.pdf. 306 See, for example: Pierce v. Society of Sisters, 268 U.S. 510 (1925); Farrington v. Tokushige, 273 U.S. 284 (1927); Lehr v. Robertson, 463 U.S. 248, 257–258 (1983); Hodgson v. Minnesota, 497 U.S. 417 (1990); and Troxel v. Granville, 530 U.S. 57 (2000). 307 Wisconsin v. Yoder 406 U.S. 205 (1972). 303

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Colleges/Universities

The history of court cases addressing the tensions between university authorities and student religious groups to some extent prepared the ground for similar difficulties in accommodating contemporary requests from the LGBT community. The legal framework for such tensions—being provided by the Civil Rights Restoration Act 1987—specified that recipients of federal funds, including all schools, must comply with civil rights laws in all areas.308 The Equal Access Act is also relevant.309 LGBT Related Issues As might be expected, problems have arisen from time to time in universities between LGBT and religious groups, and between either and university authorities, with conscientious objectors initiating litigation accusing the other of violating their First Amendment rights. In Christian Legal Society v. Martinez,310 for example, the USSC upheld the right of a College of Law to prohibit the Christian Legal Society, a student organisation in the College, from restricting membership to those who agreed to comply with an explicit set of religious and lifestyle principles. As the court noted, “First Amendment rights must be analysed in light of the special characteristics of the school environment.”311 Although Dean Martinez was making a stand on principle against a discriminating society, he cannot be considered a conscientious objector because, as an administrator, his stand was required by equality law. That the same tensions can exist within courses was evident in Ward v. Polite312 when a final semester student on a counselling course at Eastern Michigan University told her professors that while she had no problem counselling individual gay and lesbian clients, she conscientiously objected to assisting them with their same-sex relationships. Her subsequent expulsion for violating the school’s anti-discrimination policy was upheld. Affirmative Action The social policy that permits—or requires—State intervention in matters governed by a law of universal application, to grant privileges intended to offset the disadvantage suffered by a minority group unduly burdened by the effects of such a law, has generated a good deal of academic debate313 with implications if not direct consequences for conscientious objections. Fisher v. University of Texas314 is an illustrative case. This concerned a complaint from a white Caucasian female that by

308

See, for example, Bob Jones University v. United States, 461 U.S. 574 (1983). Widmar v. Vincent, 454 U.S. 263, 277 (1981). 310 130 S Ct (2010). Also, see, Ward v. Polite, 667 F.3d 727 (6th Cir. 2012). 311 Citing Widmar v. Vincent, 454 U.S., at 268, n. 5. 312 667 F.3d 727 (6th Cir. 2012). 313 See, Laycock (1990), p. 997. See, further, at: http://via.library.depaul.edu/law-review/vol39/ iss4/3. 314 579 U.S._ 2016. 309

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being denied undergraduate admission to the University of Texas, because she was not categorised as belonging to a disadvantaged group entitled to privileged access, she—and others in her position—suffered unfair discrimination. Again, in Grutter v. Bollinger,315 the USSC examined the fairness of affirmative action when it considered the protest of a prospective student to the rejection of her application to the University of Michigan Law School. She alleged that she had been denied admission because the school gave certain minority groups a significantly greater chance of admission. The school admitted that this was the case but argued that there was a compelling state interest to ensure a “critical mass” of students from minority groups. The court upheld the university’s admissions policy but added the warning that such affirmative action should be time limited and subject to strict scrutiny. On at least three occasions the USSC has ruled that public universities have acted unconstitutionally in singling out student groups (largely those whose evangelical Christian beliefs excluded LGBT members on grounds of conscientious objection) for unfavourable treatment316 and there is a case pending, to be heard in 2022, involving Harvard and affirmative action.

6.8.4

Public Defence and Security

Professed concerns for homeland security have licensed government initiatives targeting Muslims and triggering conscientious objections from those affected.317 So, for example, the travel bans imposed by the Trump Administration on those seeking to enter the U.S. from Muslim countries naturally generated such objections from prospective travellers on the grounds that they were being singled out for discriminatory treatment because of their religion.318

6.8.4.1

Military Issues

Conscientious objection originated in the controversy over whether, in times of war, the public good must prevail over private scruples and an able-bodied citizen should be required to set aside any personal misgivings and join the collective effort to protect the weak and preserve society. It has since extended to include many other aspects of life in and action by the U.S. armed forces.

315

539 U.S. 306 (2003). Healy v. James, 408 U.S. 169; Widmar v. Vincent, 454 U.S. 263; and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829. 317 See, for example, Ziglar v. Abbasi, 582 U.S. _ (2017). 318 Hawaii v. Trump, 859 F. 3d 741 (CA9 2017). 316

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Service in the National Armed Forces The Oath of Allegiance asks citizens-to-be to promise to “bear arms on behalf of the United States when required by the law” and to “perform noncombatant service in the Armed Forces of the United States when required by the law.” Both current and prospective citizens are entitled to rely on the ‘conscience clause’, incorporated into the Military Selective Service Act 1967, s.6(j), which declares that no person should be subject to “service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form”. The exemption had been formally restricted to grounds of religious belief but during the era of the Vietnam war these grounds were extended in several cases. In Gillette v. United States319 the USSC broadened the definition of ‘conscientious objector’ to include any person with “no particular sectarian affiliation or theological position . . . who has deeply held beliefs that cause them to oppose participation in war in any form”.320 Drone Operatives Targeted killing by drone strike, even when the operatives responsible are distanced by thousands of miles from their victims, can trigger conscience issues as well as PTSD for the military personnel involved. Transgender Military Personnel The decades long prohibition on trans persons serving in the military was due to end in July 2017. The order declaring that “transgender individuals be allowed to serve in the military”, and prohibiting the discharge of any service personnel on the basis of gender identity, issued under the Obama Administration, was rescinded by the Trump Administration the day before it was meant to take effect, notwithstanding opposition to this decision from the U.S. military. There then ensued a good deal of litigation, much of it instigated by the conscientious objections of trans persons regarding their rejection by the military.321 This largely revolved around a district court preliminary injunction322 granted in December 2017 which prevented implementation of a presidential ban323 on allowing transgender individuals to openly serve in the armed forces. The USSC ruled that the injunction be lifted. It found that government policy did not violate the respondents’ due process or First Amendment rights: there is no fundamental right to serve in the military, much less to do so in a particular manner; and no specific restriction on speech had been identified.

319

401 U.S. 437 (1971), per Marshall J. See, also, United States v. Seeger, 1965; Welsh v. United States, 1970. 321 See, Stockman v. Trump, No. 17-cv-1799 (C.D. Cal. filed Sept. 5, 2017), Doe v. Trump, No. 17-cv-1597 (D.D.C. filed Aug. 9, 2017) and Stone v. Trump, 280 F. Supp. 3d 747 (D. Md. 2017). 322 Karnoski v. Trump, 2:17-cv-01297-MJP. 323 Directive-type Memorandum-19-004. 320

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6.8.4.2

295

Prisoners and Asylum Seekers

Clearly, the primary response to being lawfully directed into a situation presenting a risk to personal safety is likely to be one motivated primarily by fear and selfpreservation: conscription into the armed forces, imprisonment and expulsion to country of origin are among the situations where a claimant has to first overcome a presumption they are not simply seeking to avoid consequences that must be borne by others in that situation; conscientious objection in itself being a matter of secondary importance. Prisoners U.S. led wars in Muslim countries over many years has inevitably generated much protest—relating to ‘extraordinary rendition’ drone strikes, detention without trial etc.—some of which, given the religious beliefs of those protesting, must fall within the definition of conscientious objection. The prisoners objecting to their cruel and inhuman treatment, and lack of respect for their religious practices in Guantanamo and in Abu Ghraib prison, for example, must be so classified.324 Nearer to home, in Holt v. Hobbs,325 unequivocally an instance of conscientious objection, the court upheld the Muslim plaintiff’s complaint that Arkansas prison officials had violated his religious liberty rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by refusing to allow him to grow a short beard. There have been a number of similar cases upholding the right of prisoners to manifest their religious beliefs by requiring appropriate food, clothing or opportunities for prayer to be made available; and not to be subjected to enforced proselytism.326 SOGI Related Issues Whether a prisoner with SOGI related issues should have the right to object to sharing living accommodation with others perceived as being of a different gender— and whether those “others” should have a reciprocal right to similarly object—is a matter that is becoming more prominent. The USSC, in the landmark decision of Farmer v. Brennan,327 which concerned a trans prisoner (mtf) who had been repeatedly assaulted and raped by fellow inmates, laid down the general principle that prison officers had a duty of care—when they were aware of a prisoner’s particular vulnerability—to take reasonable steps to ensure their safety. This principle may not survive the federal policy announced in May 2018, under the present Trump administration, that prisoners should not in future have any right to object—conscientiously or otherwise—to choose their accommodation but instead should be housed in accordance with their gender as

324

See, for example, Hamdi v. Rumsfeld, 542 U.S. 507. (2015) 135 SCt 853 (USSC). 326 See, Americans United For Separation of Church and State v. Prison Fellowship Ministries, 432 F. Supp. 2d 862 (S.D. Iowa 2006). 327 511 U.S. 825 (1994). 325

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acquired at birth rather than as self-identified or as surgically determined. In practice, however, many state prisons manage the vulnerabilities and health care needs of trans prisoners by segregating them from other inmates; though often in solitary confinement. Asylum Seekers The Immigration and Nationality Act 1965, initially enacted in 1952 (and subsequently and frequently amended)328 authorizes the Attorney General to grant asylum where an applicant is unable or unwilling to return to their country of origin because of either past persecution or because of a well-founded fear of future persecution on the protected grounds of ‘race, religion, nationality, membership in a particular social group, or political opinion’. The term ‘particular social group’ was first defined, in 1985, by the Board of Immigration Appeals (BIA) in Matter of Accosta329 in terms of a membership that shared some innate characteristic (e.g. race, nationality religion), which members should not be required to change. This case, by introducing a new definition of ‘social group’ which was duly extended in 1990 to include sexual orientation330 and later to trans persons,331 was of international significance as it provided a model that became widely replicated. In 2008, the BIA introduced the requirement that such a group must be based on an immutable characteristic and be socially visible and particularly defined;332 a requirement clarified in 2014 to mean merely that the group be recognised as a distinct entity within society.333 Membership of a particular social group may be a matter of perception: for example, evidence may show that an individual was perceived to be LGBT even if they were not. This subjective dimension imports the feasibility of conscientious objection claims based on a personal perception, for example that only in their current socio-cultural environment can the claimant’s beliefs and identity be fully realised. State courts varied in their response to these BIA rulings, some declining to accept BIA adjustments as to what qualified as a “particular social group” and, for example, finding that same-sex relationships did not so qualify.

328 Based upon the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol as amended by the Refugee Act 1980. 329 19 I&N Dec. 211 (BIA 1985). 330 Matter of Toboso-Alfonso, 20 I&N Dec. 819 (B.I.A. 1990). 331 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000). 332 Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008) and Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008). 333 Matter of M- E-V-G-, 26 I&N Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I&N Dec. 20 (BIA 2014).

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6.8.5

297

Employment

The constitutional dimension to the law governing matters of conscience in an employment context is to be found in the Equal Protection Clause of the Fourteenth Amendment and the Establishment Clause of the First Amendment while the primary source of relevant federal law lies in Title VII which covers most private and public employers with fifteen or more workers, and (in part) prohibits employment discrimination because of religion. Title VII defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business”.334 The EEOC, the relevant regulatory body for Title VII, has interpreted religious practice broadly “to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views”.335 That there are definite limits to the exemptions available to an employer who pleads conscientious objection as grounds for avoiding a legal duty was demonstrated in United States v. Lee.336 The USSC then ruled that an Amish employer was not entitled to exemption for unpaid Social Security taxes on the grounds that such taxes violated his freedom of conscience. Chief Justice Warren Burger, delivering judgment on behalf of the court, advised that “the State may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest . . . every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs”.337

6.8.5.1

Right of Employers to Hire and Fire

Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin”.338 ‘Religion’, broadly interpreted to include beliefs and matters of conscience, provides the basis of the duty and for the correlative exemption from it. Religious Organisations Such organisations and those with a religious ethos are permitted to discriminate when hiring and firing, on the basis of religion. The right is not restricted to jobs that

Title VII, 1964, at § 2000e-2(a). Guidelines on Discrimination Because of Religion, n. d., at § 1605.1. 336 455 U.S. 252 (1982). 337 Citing Prince v. Massachusetts, 321 U.S. 158 (1944) and Reynolds v. United States, 98 U.S. 145 (1879). 338 42 U. S. C. §2000e–2(a)(1). 334 335

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are wholly religious in nature but also includes those that are only “connected” with the activities of a religion. The Free Exercise Clause of the First Amendment, together with the Religious Freedom Restoration Act 1993, grants such exemption from equality and non-discrimination legislation as do both the ‘ministerial exception’339 and the bona fide occupational requirement (BFOQ). This is also permitted by the Establishment Clause as was confirmed in Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos340 when the USSC upheld the constitutionality of a law permitting religious organizations to exercise a religious preference when making employment decisions. Any room for equivocation was recently removed by the re-affirmation of the ministerial exception in Our Lady of Guadalupe School v. Morrissey-Berru341 which found that a religious institution’s employment disputes were a matter that fell to be resolved by that institution as the First Amendment protects the right of religious institutions “to decide for themselves, free from State interference, matters of church government as well as those of faith and doctrine”.342 In effect, the conscientious objection is reversed to give the religious organisation a presumption of exemption, based on religious beliefs, from equality law unless the activity from which they claim exemption is one unrelated to those beliefs or one that can be imputed to government under the principal/ agent rule. The Salvation Army is such a religious organisation and, in Dodge v. Salvation Army,343 was found to have failed under both those strands. This case concerned an employee who was fired from her position as assistant co-ordinator at a Salvation Army Domestic Violence Shelter because of her Wiccan religious beliefs. The court ruled that as her post was largely government funded, her employer was in effect acting in an agency capacity in relation to government and it was impermissible for the latter to allow the Salvation Army to choose the person to fill or maintain the position based on religious preference as to do so would have the effect of advancing religion which would be unconstitutional.344 Hall,345 another illustrative case, concerned a lesbian plaintiff employed by a Southern Baptist Convention-affiliated college as a student services specialist. Hall’s views on homosexuality were viewed as inconsistent with those of her employer, an inconsistency that created a conflict of interest and justified her dismissal. The court stressed the importance of showing that the termination was based on religion: for Hall to succeed she had to show that it was

339

Hosanna- Tabor Evangelical Lutheran School & School v. EEOC, 132 S. Ct. 694 (2012). 483 U.S. 327, 329, 339 (1987). 341 591 _ (2020). 342 Citing, Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 as applied in Hosanna- Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S.171. 343 1989, WL 53857 (S.D. Miss). 344 See, also, Pedreira v. Kentucky Baptist Homes for Children, 186 F. Supp. 2d 757 (W.D. Ky. 2001). 345 Hall v. Baptist Memorial Health Care Corporation, 215 F.3d 618 (6th Cir.2000). 340

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the religious aspect of her leadership position that motivated her employer’s actions; this was separable from her homosexual lifestyle. The court found that Hall’s discharge was not based upon religion, even though the college’s own objection to homosexuality was based upon the Baptist faith. It was the behavior—the acceptance and/or practice of a homosexual lifestyle—which constituted the basis for the employment action, not the belief or practice of religion. Arguably, while the complainant in Dodge can be fairly defined as a conscientious objector the one in Hall cannot: only the former’s dismissal was intimately linked to religious beliefs. Secular Organisations Title VII requires employers to provide reasonable accommodation for employees’ sincerely held religious beliefs and the latter are entitled to a degree of First Amendment protection should they choose to express those views in the workplace. This protection can come into play before a prospective employee reaches the workplace as was demonstrated in EEOC v. Covergys Corp.,346 when an applicant during the course of his job interview mentioned that due to his religious beliefs he would be unavailable for work on the Jewish sabbath, and was then advised that the interview was terminated. The courts have given some attention to circumstances where an employee, who does not share the same religious beliefs as their employer, is fired and there is evidence that the religious difference has been at least a contributory factor in the termination. This is precluded by Title VII as illustrated in a number of cases: Blalock v. Metals Trades, Inc.,347 (employee discharged until he “got things straightened out” with employer’s religious leader); Shapolia v. Los Alamos National Laboratory,348 (allegation that Mormon supervisors gave negative evaluation because employee non-Mormon); Heller v. EEB Auto Co349 (employer’s refusal to grant leave for Jewish employee to attend wife and children’s conversion ceremony); and Venters v. City of Delphi,350 (employee preached to from Bible, told she should go to employer’s church to hear “altar call,” and told to “save” herself to avoid dismissal from employment). Where an employee is unduly provocative in manifesting their conscientious objection in the workplace—by, for example, insisting on wearing an anti-abortion badge—then they will be unable to find protection in the reasonable accommodation rule.351 Much the same issue was present in Downing v. West Haven Board of Education,352 when a teacher unsuccessfully sued both the school district and a number of individual board employees 346

(E.D. Mo. 2011). 775 F.2d 703 (6th Cir.1985). 348 992 F.2d 1033 (10th Cir.1993). 349 (1993) 8 F 3d 1433 (Court of Appeals, 9th Circuit). 350 123 F.3d 956 (7th Cir.1997). 351 Wilson v. U.S. W. Communications, 58 F.3d 1337, 1341–1342 (8th Cir. 1995). 352 162 F. Supp.2d 19 (D.Conn. 2001). Also see Marchi v. Board of Coop Educational Services of Albany, 173 F.3d 469, 476 (2d Cir. 1999); Holloman ex rel. Holloman v. Harland, 370 F. 3d 1252 (11th Cir. 2004); and the many “student initiated” school prayer cases. 347

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alleging that the board had impermissibly infringed on her right to free speech and free exercise of her religion when it told her to stop wearing a tee-shirt that read “Jesus 2000, J-2K” during instructional time. While being perceived as too religious does not in itself constitute grounds for firing;353 causing “undue hardship”354 when attempting to impose those beliefs upon others in the workplace, will do so.355 These are all situations which could be characterised as being the result of mutually opposing conscientious objections: those objecting to a workplace environment not receptive to their religious views; opposed by those who object to being exposed to those views; the religion/beliefs/conscience being central to both. Moreover, employees in the public sector clearly bear a heavier onus not to compromise the State by proclaiming beliefs while acting as its representative. So, in Knight v. State of Connecticut, Department of Public Health, and Quental v. State of Connecticut Commission on the Deaf and Hearing Impaired,356 born-again Christians who felt called upon to proselytize while working with clients were reprimanded and then brought actions conscientiously objecting to being so treated. In both cases, the 2nd Circuit found in favour of the employers: in the circumstances of each case the government had the right to restrict employee speech; expressing religious views to clients caused undue hardship and interfered with the performance of their duties. The employer/employee relationship as regards religious belief was fundamentally revised by the USSC, in the landmark case of Burwell v. Hobby Lobby,357 which considered whether, under the RFRA, the religious beliefs of an employer of a secular commercial company could prevail over the ‘contraceptive mandate’ a regulation adopted by the U.S. Department of Health and Human Services under the Affordable Care Act requiring employers to financially provide for certain contraceptives. It found that owners of “closely held”358 for-profit corporations were entitled to conscientiously object, on the basis of their established religious beliefs, to being compelled to provide contraception under their healthcare plans as the statutory contraceptive mandate did not show how this was “the least restrictive means of furthering (the State’s) compelling interest.”359 The court found that the RFRA grounds a general right to conscientious exemption, similar to that established in Sherbert,360 affording protection to conscientious objectors from governmental burdens imposed by law. That decision, by extending the right to conscientiously

353

Dixon v. The Hallmark Companies, Inc., 627 F.3d 849 (11th Cir. 2010). Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir.1985). 355 Hall v. Tift County Hosp. (M.D. Ga. 6/10/13) and Dombrowski v. Federal Aviation Administration, Civil Action No. 1:06-CV-1444-BBM (N.D. Ga. 2008). 356 275 F.3d 156, 168 (2001) (consolidated cases). 357 573 U.S. 134 S Ct 2751 (2014). 358 “Closely held” corporations, as defined by the IRS, are estimated to constitute approximately 90% of U.S. corporations and employ approximately 52% of the U.S. workforce. 359 Hobby Lobby op cit, p. 46. 360 Sherbert v. Verner, 374 U.S. 398 (1963). 354

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301

object to such an employer, may lay the ground for further exemptions that could be manifested in constraints on employees’ rights and liberties e.g. as regards family planning services, same sex relationships etc. SOGI Related Issues A protest alleging discrimination does not of itself translate into conscientious objection. However, if religion/belief/conscience is a primary factor: the discriminatory conduct being a manifestation by the discriminator of their particular beliefs or the victim perceiving the conduct as directed against them because of their particular beliefs; then the latter’s protest may well, in practice, meet that definition. Evans v. Georgia Regional Hospital,361 for example, concerned Ms Evans, a gay female security officer in a hospital, who alleged that she had been denied equal pay for work, had been harassed, physically assaulted or battered, in a hostile work environment, because of her sexual orientation and gender non-conformity (“male uniform, low male haircut, shoes, etc.”) which ultimately resulted in her resignation. In 2019, the USSC considered much the same issue in Zarda v. Altitude Express362 (consolidated with Bostock v. Clayton County, Georgia363) which concerned a claim brought by a former employee that the termination of his job as a sky-diving instructor was for failing to conform to the “straight male macho stereotype”. Arguably their claims of discrimination could be seen, without too much of a stretch, as conscientious objections to being treated as a stereotype, as a representative of values/beliefs inimical to those of the perpetrator.364

6.8.5.2

The Workplace

Under Title VII, employers’ have a duty to accommodate the religious beliefs of their employees, a duty reinforced by the USSC ruling that a “hostile work environment” violates Title VII by affecting the “psychological aspects of the workplace environment”. Undue Hardship Under Title VII, the employer’s duty is subject to it not imposing undue hardship on their business:365 The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

361

No. 15-15234 (11th Cir. 2017). 139 S.Ct. 1599—2019. 363 140 S.Ct. 1731 (2020). 364 See, also, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). 365 Title VII, § 2000e(j) of the U.S. Code. 362

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In fact most Title VII religion cases have turned on this hardship caveat.366 The early and important case of Trans World Airlines, Inc. v. Hardison367 concerned an employee who was dismissed following a protracted dispute between management and unions regarding his conscientious objection to working Saturdays on religious grounds. He claimed that his dismissal constituted religious discrimination, in violation of § 703(a)(1) of Title VII which, in conjunction with the 1967 Equal Employment Opportunity Commission (EEOC) guidelines, required an employer, short of “undue hardship,” to make “reasonable accommodations” regarding the religious needs of employees. Ultimately, the court ruled in favour of TWA on the basis that, in the circumstances, requiring the employer to bear more than a de minimis cost in order to give the respondent Saturdays off would be an undue hardship, as it would then have to bear the considerable costs arising from other employees requesting similar rights. Undue hardship was a factor in the proselytising cases of Knight v. State of Connecticut, Department of Public Health, and Quental v. State of Connecticut Commission on the Deaf and Hearing Impaired.368 Public sector employees bear a responsibility not to compromise the State by proclaiming personal beliefs while acting as its representative. So when born-again Christians had felt called upon to proselytise while working with clients, and were duly reprimanded, they then brought actions claiming unfair treatment. In both cases, the Second Circuit found in favour of the employers: in the circumstances of each case, the government had the right to restrict employee speech; expressing religious views to clients caused had caused undue hardship and interfered with the performance of their duties. Sincerity of Belief The sincerity of a conscientious objector’s professed beliefs must be established as a matter of fact. So, in Hussein v. Waldorf-Astoria,369 the claim that a beard was necessitated by Islamic beliefs might well have found a sympathetic hearing if there had been any evidence of the plaintiff having an interest in religious beliefs or in growing a beard during his previous 14 years of employment. In EEOC v. Chemsico, Inc.,370 where questions existed as to whether an employee who did not follow all of the teachings of her church and stopped attending church services had a sincere religious belief that precluded her from working on the Sabbath, the jury nevertheless concluded that the belief was sincere because she continued to engage in Bible study and had consistently refused to work on the Sabbath. On the other hand,

366 See, for example, Trans World Airlines v. Hardison, 432 U.S. 63 (1977); Protos v. Volkswagen, 797 F.2d 129 (3d Cir.), 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); Bhatia v. Chevron U.S.A. Inc., 734 F.2d 1382 (9th Cir.1984); and EEOC v. Sambo’s, 530 F.Supp. 86, 90 (N.D. Ga.1981). 367 Op cit. 368 275 F.3d 156, 168 (2001) (consolidated cases). 369 134 F. Supp. 2d 591 (S.D.N.Y. 2001). 370 216 F. Supp. 2d 940 (E.D. Miss. 2002).

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Eatman v. United Parcel Serv.371 concerned an employee who sincerely considered his dreadlocks to be a testament or outward expression of his commitment to Protestantism and the principles of Nubianisn. The court, however, found that this was not a requirement of his beliefs but a matter of personal choice. There are very many cases concerning plaintiffs whose conscientious objection to working on certain days has resulted in their dismissal, including Sherbert v. Verner372 when the court upheld a claim by a person denied State unemployment benefits because he refused to work on Saturdays due to his religious beliefs. Similarly in Thomas v. Review Bd of Indiana Employment Security Div373 which concerned a Jehovah Witness who was denied unemployment compensation when he terminated his employment because he was transferred to a department that produced war materials. The court held that he was entitled to unemployment benefit.

6.8.6

Commercial Services

Titles III and IV of the Civil Rights Act 1964 provide the main statutory protection for the right of equality in accessing services. Title II prohibits discriminatory practice by any establishment that leases, rents or sells goods or provides services.374 Specifically, s.2000a(a) of the Civil Rights Act 1964 declares that “all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . .”.

6.8.6.1

Goods and Services

Private service providers (owners of hotels, boarding houses etc.), claiming exemption from equality and religious discrimination provisions on the grounds of personal religious belief, gives rise to a great deal of controversy throughout the U.S. Cases include, a conscientious objection to baking a cake ordered to celebrate gay marriage.375 However, it now remains to be seen what effect the recent USSC ruling in Fulton v. Philadelphia376 will have on the discretion of service providers to in future filter service access in accordance with their religious or other beliefs.

371

194 F. Supp. 2d 256 (S.D.N.Y. 2002). 374 U.S. 398 (1963). 373 (1981) 450 U.S. 707 (USSC). 374 See, for example, Heart of Atlanta Motel Inc v. U.S., 379 U.S. 241 (1964) and Katzenbach v. McClung, 379 U.S. 294 (1964). 375 See, the decision of the Oregon Bureau of Labour and Industries to fine Sweet Cakes by Melissa for such a refusal at: Richardson, V., ‘Oregon panel proposes $135k hit against bakers in gay-wedding cake dispute’, Washington Times, April 24, 2015. 376 593 _ U.S. (2021). 372

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6.8.6.2

United States of America

Religious Owners of Commercial Businesses

The application of the religious exemption to commercial organisations was considerably extended by the decision of the USSC in the above-mentioned Burwell v. Hobby Lobby Stores Inc.377 It was the conscientious objection of the evangelical Christian owners to being unduly burdened by the universally applicable Affordable Care Act requirement that they subsidise employee access to contraceptives—which they wholly disagreed with on religious grounds—that provided the rationale to broaden the interpretation of conscientious objector to include a restricted range of commercial entities thereby circumventing the constraints of the First Amendment and the RFRA.

6.9

Conclusion

No other nation on earth attaches as much importance to the independence of individuals and gives recognition to this in law. The inherent right to express views—including dissent—in public, subject only to the requirement to cause no direct harm to others, is well established and constitutionally protected. Conscientious objection, crucial to personal autonomy and dissent, was assured of legal protection before the recent rash of state religious liberty laws and is set to acquire an altogether new breadth of application and social policy salience following the introduction of the Conscience Protection Act 2019 and, in time, the Equality Act 2019. In the meantime, as a consequence of a slew of USSC 2020 decisions and the many federal initiatives taken by the Trump Administration, the indications are that a resurgence of legal protection for traditional Christian beliefs and values will increasingly collide with equality legislation—particularly in relation to SOGI related matters—to generate opportunities for opposing conscientious objections.

References Abramowitz AI (2012) The polarized public. Pearson Education Adenitire J (2020) A general right to conscientious objection. CUP Card RF (2007) Conscientious objection and emergency contraception. Am J Bioethics 7(6) Currier P (2004) Freeman v. State of Florida: compelling state interests and the free exercise of religion in post September 11th courts. Catholic Univ Law Rev, 53 Dahl RA (2001) How democratic is the American Constitution? 2nd edn. Yale University Press Esau AJ (2000) ‘Islands of Exclusivity’: religious organisations and employment discrimination. Univ Br Columbia Law Rev 33:719 Esau AJ (2009–2010) Islands of exclusivity revisited: religious organizations, employment discrimination and Heintz v. Christian Horizons. Can Lab Emp Law J 15:389

377

573 U.S. 682 (2014).

References

305

Fiorina M (2010) Culture war? The myth of a polarized America, 3rd edn. Pearson Education Green A (1993) The political balance of the religion clauses. Yale Law J 102:1611 Greenhouse L (2020) On the election. In: The New York review of books, Vol I XVII, No 17, p 8 Habermas J (2006) Religion in the public sphere. Eur J Philos 14(1):1–25 Herring RD (1989) The American native family: dissolution by coercion. J Multicult Counselling Dev 17(1):4–13 Hunter JD (1991) Culture wars: the struggle to define America. Basic Books, New York Laycock D (1990) Formal, substantive, and disaggregated neutrality toward religion. DePaul Law Rev 39(4):993 Lupu IC, Tuttle RW (2021) The radical uncertainty of free exercise principles: a comment on Fulton v. City of Philadelphia. GW Law Faculty Publications. https://scholarship.law.gwu.edu/faculty_ publications/1550/ Marshall WP (2019) Third-party burdens and conscientious objection to war. Kentucky Law J 106. UNC Legal Studies Research Paper (2018). https://ssrn.com/abstract¼3284553 Monoya F (2020) Intergenerational control: why genetic modification of embryos via CRISPRCas9 is not a fundamental parental right. Am Univ Law Rev 69(3):1015–1054. Article 6 Pepper S (1981) Reynolds, Yoder, and beyond: alternatives for the free exercise clause. Utah Law Rev 309 Schwartz M (2020) Criminalizing a constitutional right. In: The New York review of books, vol LXVII, No 19, pp 20–21 Shcvey A, Kim C (2018) Unconscionable: how the U.S. Supreme Court’s jurisprudence lags behind the world when it comes to contraception and conscience. Contracep Reprod Med 3(2). https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC5859490/ Steele M, Barclay S (2021) Rethinking protections for indigenous sacred sites. Harv Law Rev 134: 1294. BYU Law Research Paper No. 20-23. https://ssrn.com/abstract¼3689111 Taub S (2020) NY v. HHS and the challenge of protecting conscience rights in healthcare. Federalist Soc Rev 21. https://fedsoc.org/commentary/publications/ny-v-hhs-and-the-chal lenge-of-protecting-conscience-rights-in-healthcare#_ftnref5 Wicclair MR (2011) Conscientious objection in health care: an ethical analysis. Cambridge University Press, West Nyack York JC (2021) Silicon values: the future of free speech under surveillance capitalism. Verso

Chapter 7

Canada

Abstract This chapter begins with a summary of the factors that have made an historical contribution to fostering the diversity and dissent conducive to generating conscientious objections in a country with a distinctively Christian cultural heritage. It then identifies and examines some key principles, doctrines and definitions before beginning an assessment of what now meets the legal definition of ‘religion’, belief or ‘matter of conscience’ in this jurisdiction. It examines the developments in law and policy, relating to the initial recognition of incidences of conscientious objection, as a precursor to an outline of the international and domestic law currently providing the relevant legal and regulatory framework. This is followed by a review of the impact of fundamental human rights on dissent in general and on conscientious objection in particular. All of which leads to the main business of this and all other Part III chapters: a profile of contemporary national caselaw relating to conscientious objection; in accordance with those areas of social activity where the incidence is greatest; in order to identify trends, emerging principles and other characteristics that appear jurisdictionally significant.

7.1

Introduction

Canada, a federal nation of ten provinces and three territories, is built on foundations which differ greatly in terms of their cultural and historical experiences. Since Confederation in 1867, the bijural and bilingual strands—representing deeply entrenched cultural divisions—have receded somewhat in institutional salience. This is largely attributable to the impact of successive waves of immigration and an awakening concern for the status of First Nation communities. In contrast to the U.S., Canada is more of a ‘mosaic’ rather than a ‘melting pot’ of cultures. Evidence of the a capacity for accommodation can be seen in: the independence of its Indigenous People—First Nations, Métis, and Inuit; the Québécois; the many distinct communities of French, English, Irish, Scots, Germans, Ukrainians and Asians etc; the vibrant, authentic, cultural life of Jews, Hutterites, Sikhs, Muslims and others; the openness towards asylum seekers; coupled with what is probably the highest rate of first generation immigrants in the Part III jurisdictions. It is also © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_7

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evidenced in the very deliberate political effort to cultivate a multicultural ethic that places a positive value on preservation of cultural difference as the distinguishing trademark of a modern Canadian nation. This, as Kimberley Brownlee adds “may well include, for instance, broad acceptance of women’s reproductive rights, general – albeit imperfect – commitment to universal healthcare, a commitment to tolerance and accetpance, an appreciation of diversity for its own sake, and a general belief in the decency of Canadian society”.1 The recognition and protection of difference, as established in the Charter of Rights and Freedoms and reinforced by the Multiculturalism Act, provides the context for addressing dissent and for accommodating conscientious objection in Canada. This, as with all Part III chapters, begins with a summary of the factors that have made an historical contribution to fostering the diversity and dissent conducive to generating conscientious objections in a country with a distinctively Christian cultural heritage. It then identifies and examines some key principles, doctrines and definitions before beginning an assessment of what now meets the legal definition of ‘religion’, belief or ‘matter of conscience’ in this jurisdiction. It examines the developments in law and policy, relating to the initial recognition of incidences of conscientious objection, as a precursor to an outline of the international and domestic law currently providing the relevant legal and regulatory framework. This is followed by a review of the impact of fundamental human rights on dissent in general and on conscientious objection in particular. All of which leads to the main business of this and all other Part III chapters: a profile of contemporary national caselaw relating to conscientious objection; in accordance with those areas of social activity where the incidence is greatest; in order to identify trends, emerging principles and other characteristics that appear jurisdictionally significant.

7.2

Principles, Doctrines and Definitions

Relatively recently, as McLachlin CJ noted, the courts broadened their traditional interpretation of ‘religion’ to accommodate different belief systems: “the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the State to consciously profess a theistic faith” instead it “must be given a generous and expansive interpretation”.2 As this broad and accommodating approach continues to absorb a proliferation of different religions and beliefs, the principle that the State should maintain a position of neutrality towards all is coming under pressure. There are conscientious objections from traditional religious adherents who protest that, by adopting this approach, the State is neglecting a duty of care towards its cultural heritage.

1 2

Note to author (10.08.21). Mouvement laique quebecois v. Saguenay (City), 2015 SCC 16, at para 147.

7.2 Principles, Doctrines and Definitions

7.2.1

309

Religion, Belief and Matters of Conscience

The Charter, s.2a, by providing separate recognition for “conscience” and “religion,” would seem to have established a legal distinction. As Richard Moon puts it:3 While freedom of religion protects fundamental religious beliefs, freedom of conscience extends protection to fundamental beliefs that are not part of a religious belief system – to secular morality.

He takes the view that the effect of the separation raises doubts as to whether the status of conscientious objector can, or should, be extended to those who hold non-religious beliefs.4

7.2.1.1

Traditional Religions

The ruling in R. v. Big M. Drug Mart5 was based on a finding that a law banning commerce on the Christian Sabbath “works a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians” by binding “all to a sectarian Christian ideal”.6 Following it the courts moved away from the orthodox institutional interpretation of ‘religion’ to embrace a wider view based on an individual’s human right to choose their beliefs and how to express them:7 The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the rights to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

This view—centred on the subjective interpretation of a sincere believer—was further developed by Iacobucci J in Syndicat Northcrest v. Amselem:8 Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

In that case the SCC stated that “claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an 3 Moon (2014), p. 188 and at: https://journals.library.ualberta.ca/constitutional_forum/index.php/ constitutional_forum/article/view/29403/21402 See, also, Waldron (2013). 4 See, further, Moon (2019). 5 [1985] 1 SCR 295. Citing Tarnopolsky J in R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395 (C.A.). 6 Big M at 337. 7 Ibid, per Dickson J., at p. 336. See, also, R v. Edwards Books and Art Ltd [1986] 2 SCR 713. 8 (2004) 2 SCR 576 at para. 39.

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inquiry appropriate for courts to make”.9 Instead, a two-pronged test must be satisfied: it must be demonstrated that a person is engaged in a practice or a belief that has a nexus with religion; and the person has to be sincere in their belief. Arguably, the first has since developed some variants of such an attenuated relationship with religion as to cast doubt on the existence of any nexus while sincerity, although remaining essential, is in itself no guarantee of authenticity. It might be added that this approach would seem somewhat removed from that employed elsewhere—in England and Wales, for example,—where belief, however sincere, is tested by criteria of cogency, substantiveness, coherence and “worthy of respect in a democratic society”.10

7.2.1.2

Contemporary Belief Systems and Matters of Conscience

The reference in s.2(a) of the Charter to “freedom of conscience and religion” clearly implies that “conscience” is intended to indicate a separate and distinct added value: an inference that constitutional protection is also available for non-religious beliefs. Nonetheless, the cases show that the SCC has focused on issues that primarily relate to the freedom of religion with little evidence of any engagement with freedom of conscience cases that do not also involve freedom of religion.11 In fact the only Canadian court decision grounded solely on freedom of conscience was the lower court case of Maurice v. Canada (Attorney General),12 which concerned a federal inmate who was entitled to receive a vegetarian diet until he renounced his Hare Krishna faith at which point that privilege was rescinded, despite his insistence that for him vegetarianism was a matter of moral conscience. Justice Campbell J, in finding that the inmate’s freedom of conscience had been violated, drew attention to the need to take cognisance of the fact that “s.2(a) of the Charter affords the fundamental freedom of both religion and conscience . . . both freedoms are to be recognized”. Being satisfied that vegetarianism is a belief system (the consumption of animals being perceived as morally wrong) he ruled that the inmate’s objection to a non-vegetarian diet qualified as conscientious.13 There is much to be said for the view that while ‘religion’ refers to matters of faith, ‘conscience’ is about those matters of morality that fall outside those addressed by the tenets and doctrines of various faiths.14 For Dickson CJ “the notion of the centrality of individual conscience and the inappropriateness of governmental

9

Ibid, at para. 43. See, further, McClintock v. Department of Constitutional Affairs, [2008] IRLR 29 and Grainger v. Nicholson, [2009] UKEAT. 11 See, Haigh (2012), (unpublished). 12 [2002] FCT 69. 13 Ibid, at paras. 8 and 9. See, also, Ryder (2005a). 14 See, to some extent, Bird, op cit, at p. 97. 10

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311

intervention to compel or constrain its manifestation”15 was integral to s.2(a) while Wilson J in Morgentaler16 (see, further, below) advised that the freedom to hold and exercise beliefs was not restricted to beliefs of a religious nature: “in a free and democratic society ‘freedom of conscience and religion’ should be broadly construed to extend to conscientiously held beliefs, whether grounded in religion or in a secular morality”.17 As acknowledged by Iacobucci J in Amselem, this generous interpretation has permitted recognition of groups such as Falun Gong18 and Wiccas,19 (also, more recently, atheists20) and has now become a settled characteristic of the Canadian judicial approach to religion and belief.21 That the judiciary are prepared to set limits on further liberal extensions was indicated by the decision in Church of Atheism of Central Canada v. Canada (National Revenue)22 when the Court of Appeal upheld the dimissal of a body set up “to preach Atheism through charitable activities”. However, all individuals and religious/belief organisations enjoy equal Charter protection and as the SCC confirmed in Mouvement laique quebecois v. Saguenay (City)23 for the purposes of Charter protection the concepts of “belief” and “religion” encompass non-belief, atheism and agnosticism.

Legitimacy and Cogency The legitimacy, in law, of a subjective interpretation of what might constitute a religious belief is something with which the courts in Canada as elewhere have wrestled. Recognition of the difficulties were alluded to by Hilton J, in Rosenberg v. Outremont (City),24 when he commented on the religious significance of a Jewish eruv: “an eruv is only a religious zone for those who believe it to be one”.25 Iacobucci J in Amselem explained that if an individual’s asserted religious belief “is in good faith, neither fictitious nor capricious, and that it is not an artifice”26 and he or she sincerely believes that manifesting that belief by way of a certain practice has spiritual significance or connects them with the divine or spiritual realm, then this will be protected under s.2(a) of the Charter. It is “the religious or spiritual 15

R v. Big M Drug Mart [1985] 1 SCR 295 at para. 346. See, Morgentaler v. R [1988] 1 SCR 30. 17 Ibid at para. 251. 18 Huang v. 1233065 Ontario, 2011 HRTO 825 (CanLII). 19 Re O.P.S.E.U. and Forer, (1985), 52 O.R. (2d) 705 (CA). 20 In R.C. (Next friend of) v. District School Board of Niagara, 013 HRTO 1382. 21 Ibid. 22 2019 FCA 296 (CanLII). 23 2015 SCC 16. 24 [2001] RJQ 1556, 84 CRR (2d) 331. 25 Ibid, at para. 44. 26 Syndicat Northcrest v. Amselem [2004] 2 SCR 551 at para. 52. 16

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essence of an action” that attracts protection. He was of the opinion that it was unnecessary for the holder of that belief to show that it was “objectively recognized as valid by other members of the religion.”27 If the person believes that he or she has an obligation to act in accordance with a practice or endorses a belief “having a nexus with religion”, the court is then limited to assessing the sincerity of that belief.28 This seemed to be reinforced in Ktunaxa Nation29 when the SCC ruled that to determine how the plaintiffs’ beliefs could be protected would require the State and its courts to assess the content and merits of religious beliefs which was outside their remit. With the most recent decision by the SCC in Highwood Congregation v. Wall,30 the general rule would seem to have been re-asserted.

Beliefs of Indigenous People The Indigenous people—the First Nations, Inuit and Métis—were originally spread across all of Canada, each tribe with its own distinctive culture and set of beliefs, customs, ceremonies and rituals, usually with strong spiritual references to specifc animals and to nature in general. Their beliefs have some common elements including an Indigenous Spirituality or “way of life” or “way of knowing” centered on a relationship with the Creator, the land and “all our relations”. This usually includes all other beings and forms of life, including what are commonly perceived as inanimate objects, generally considered to be imbued with a spirit or soul. Most view Indigenous Spirituality as being inseparable from their traditional Indigenous culture and identity.31 The Canadian Human Rights Act, s.35 of the Constitution Act, s.25 of the Charter of Rights and Freedoms, and the United Nations Declaration of the Rights of Indigenous Peoples all include legal protections for the fundamental right of Indigenous peoples to freely practice their religious and spiritual traditions, and to be treated equally and with dignity.32 The SCC has a well-established track record of according locus standi to the beliefs of Indigenous people.

27

Ibid, at para. 43. Also, see, S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235. 28 Ibid. 29 Ktunaxa Nation v. British Columbia, op cit. 30 2018 SCC 26. Author thanks Matt Harrington for advice on this case (note to author, 06.08.2018). 31 See, further, at: http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-creed/11indigenous-spiritual-practices#_ednref490. 32 Kelly v. British Columbia (Public Safety and Solicitor General) (No.3), 2011 BCHRT 183 (CanLII).

7.2 Principles, Doctrines and Definitions

7.2.2

313

State Neutrality

In Chamberlain v. Surrey School District No. 3633 the court noted that a “gradual separation of Church and State in Canada has been part of a broad movement to secularize public institutions” and “following a realistic and non-absolutist approach, State neutrality is assured when the State neither favours nor hinders any particular religious belief, that is when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected”. This view was endorsed by Deschamps J in SL v. Commission scolaire des Chênes34 and subsequently also by Gascon J in Mouvement laïque québécois35 who added that the “State’s duty of religious neutrality . . . flows from the freedom of conscience and religion”36 and went on to explain the meaning of this term as follows: The evolution of Canadian society has given rise to a concept of (this) neutrality according to which the State must not interfere in religion and beliefs. The State must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief . . . In a case in which a complaint of discrimination based on religion concerns a State practice, the alleged breach of the duty of neutrality must be established by proving that the State is professing, adopting or favouring one belief to the exclusion of all others and that the exclusion has resulted in interference with the complainant’s freedom of conscience and religion.

However, State neutrality is subject to limits. This was made clear by Wilson J in R. v. Jones37 who was of the view that s.2(a) of the Canadian Charter “does not require the legislature to refrain from imposing any burdens on the practice of religion . . . the ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises”. No right is absolute. This was further illustrated by the Hutterite case38 which concerned the Alberta government’s response to the conscientious objection of the Hutterite community—acting as a single legal entity—to willingly allow their photographs to be taken. A decision was taken to withdraw an exemption, previously available to Hutterites, from the requirement that their drivers’ licences include photographs; an exemption clearly illustrative of State concern that a neutral law of universal application should not inadvertently burden a religious minority. In rejecting the applicants claim, McLachlin CJ acknowledged the perspective of religious claimants rights but, as she went on to explain, “this

33

[2002] 4 SCR 710, 2002 SCC 86. [2012] 1 SCR 235, at para.10. 35 Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. See, also, Congrégation des témoins de Jéhovah de St-Jérôme- Lafontaine v. Lafontaine (Village), [2004] S.C.J. No. 45, [2004] 2 S.C.R. 650, per LeBel J at paras. 67–68 and 76. 36 Ibid at para. 49. 37 [1986] 2 S.C.R. 284, at pp. 313–314. 38 Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC 37, [2009] 2 SCR 567. 34

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perspective must be considered in the context of a multicultural, multi-religious society where the duty of State authorities to legislate for the general good inevitably produces conflict with individual beliefs”. Some years later, in Mouvement laïque québécois v. Saguenay (City),39 declaring that the State “can “neither favour nor hinder any particular belief, and the same holds true for non-belief”,40 she rejected any suggestion that State neutrality is compromised by the proclamation in the preamble to the Canadian Charter of Rights and Freedoms that “Canada is founded upon principles that recognize the supremacy of God and the rule of law”. A view supported by Gascon J who declared that “sponsorship of one religious tradition by the State in breach of its duty of neutrality amounts to discrimination against all other such traditions,” and went on to explain that . . . “the State (must) abstain from taking any position and thus avoid adhering to a particular belief . . . it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others”.41 Nonetheless, the religiously biased protections of the Constitution Act 1867, s.93, remain in effect (see, further, below at Sect. 8.3.1). Under s.2(a) the State may accommodate a religious practice if this can be done with minor cost to public policy: it is not precluded from supporting religion provided it does so in an even handed way. This was evident, for example, in Amselem,42 Loyola43 and in Trinity Western.44 However, this is a discretionary power not a duty. The courts have stopped short of interpreting s.2(a) of the Charter as imposing a positive obligation on government to facilitate the exercise of religious freedoms. “Never,” wrote McLachlin J (as she then was) in the Adler case, “has it been suggested that freedom of religion entitles one to State support for one’s religion”.45 The obligation on the State to adopt an even-handed rather than a hands off approach in relation to the promotion of religion, was clearly recognised by Dickson CJ in Big M:46 [t]he equality necessary to support religious freedom does not require identical treatment of all religions. In fact the interests of true equality may well require differentiation in treatment.

However, he then went on to declare that “the diversity of belief and non-belief, the diverse socio-cultural backgrounds of Canadians make it constitutionally incompetent for the federal Parliament to provide legislative preference for any one 39

[2015] 2 SCR 3, per McLachlin CJ at paras. 39, 43, 46 and 54. Ibid at para 72. 41 Ibid, at para. 88. 42 Syndicat Northcrest v. Amselem, [2004] 2 SCR 551. 43 2015 SCC 12. 44 Law Society of BC v. Trinity Western University, 2018 SCC 32 and Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. 45 Adler v. Ontario, [1996] 3 RCS 609, at para. 200. 46 R v. Big M Drug Mart, op cit, per Dickson J., at para. 124. 40

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religion at the expense of those of another religious persuasion”.47 The latter sentiment was endorsed by LeBel J in Congrégation des témoins de Jéhovah de St-Jérôme- Lafontaine v. Lafontaine (Village)48 when the SCC found that the Municipality had violated its duty of procedural fairness owed to the Congregation by refusing to provide reasons to justify its decisions to deny two of the applications for rezoning. As he then commented:49 . . . the State acts as an essentially neutral intermediary in relations between the various denominations and between those denominations and civil society . . . it is no longer the State’s place to give active support to any one particular religion, if only to avoid interfering in the religious practices of the religion’s members. The State must respect a variety of faiths whose values are not easily reconciled.

It is, perhaps, not wholly clear whether these views suggest that neutrality is about a duty of even-handedness in State dealings with religions or whether they suggest that the State should remain neutral in relation to religion generally, that there should instead be a “dissociation of the functions of Church and State”.50

7.2.2.1

Laïcité

A product of the French Revolution, transferred to Canada and adopted by Québec, laïcité embodies the right to freedom of conscience and religion and at the very least requires the separation of Church and State, although on a somewhat different basis than the rest of Canada.51 Bill 2152 represents what laïcité means in Québec. From June 2019, State neutrality requires those delivering public services to do so without wearing any religious symbols. In practice, it bars public-sector employees in positions of authority—such as schoolteachers and principals, prosecutors and police officers—from wearing religious symbols—such as hijabs, kippas or turbans—while in the workplace. It has a particularly onerous effect on Muslim women. This legislation distances Québec from the rest of Canada while strengthening its cultural affiliation with France.

47

R v. Big M, op cit, at para. 351. 2004 SCC 48, [2004] 2 S.C.R. 650. 49 Ibid at paras. 67–68. Note also: “The principle of State neutrality discussed above means that the State must even refrain from implementing measures that could favour one religion over another or that might simply have the effect of imposing one particular religion” at para. 76. 50 See, also, Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. 51 As Richard Moon points out: “Québec became separated from France before the Revolution occurred – and unlike France held on to – nurtured – a deep Catholic identity – with the Church playing a very large role in society and politics until the Quiet Revolution (secularization) in the 1960s. Laïcité has arrived in Québec more recently – borrowed from France because of cultural connections and similar anxieties about identity, immigration, and religion in a post-Catholic society” (note to author: 20.12.2019). 52 Entitled ‘An Act respecting the laïcité of the State’. 48

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Preferencing Christianity and the Christian Cultural Heritage

Religion, constitutionally presumed to refer to Christianity, has been duly accorded special State recognition in various ways including: reference to the ‘supremacy of God’ in the Charter preamble; the statutory recognition of Christian religious holidays; Christian inscriptions on coinage; and in the tax exemptions granted to what were initially Christian religious organisations. The fact that State neutrality is compromised by constitutional arrangements and by the many Canadian laws giving preference to Christianity has long been judicially acknowledged:53 “Canada is founded upon principles that recognize the supremacy of God and the rule of law,” proclaims the preamble to the Canadian Charter of Rights and Freedoms. Indeed, the purpose and effect of the Lord’s Day Act—the issue at the heart of Big M—which prohibited business transactions on Sundays,54 undoubtedly preferenced those of Christian belief over and above those of other beliefs and those of none. However, in Mouvement laïque québécois v. Saguenay (City),55 the SCC allowing the appeal, upheld the challenge from an atheist to the presence of a cruxifix and to recitation of a prayer by the Mayor of Saguenay at council meetings, warning that “[i]f the State adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality”.56 Cambell J, concurring, asserted in Trinity Western that:57 Canada is a “secular society”. The State remains neutral on matters of religion. It does not favour one religion over another. And it does not favour either religion or the absence of it. While the society may be largely secular, in the sense that religion has lost its hold on social mores and individual conduct for many people, the State is not secular in the sense that it promotes the process of secularization. It remains neutral.

State neutrality has had to make room for a Christian cultural heritage which for many generations has been represented by a degree of denominational polarisation underpinned by constitutionally protected pro-and anti-Catholic policies and institutions as illustrated by the range of religion specific schools and colleges in the public education system and similarly with religion specific hospitals and other health care facilities which have taken root within the public health care system. This prominently Christian—but bifurcated, bilingual (English and French) and bijural (common law and civil law)—cultural heritage, is one that has long struggled to maintain coherence, to be reconciled with its constituent First Nations and to achieve the multicultural principles now embodied in legislation.58

53

See, Big M, ibid, Zylberberg v. Sudbury Board of Education (1988) 65 OR and Canadian Civil Liberties Association v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341. 54 See, also, R v. Robertson and Rosetanni, [1963] SCR 651. 55 Mouvement laïque québécois, op cit. 56 Ibid, at para 78. 57 Trinity Western University v. Nova Scotia Barristers’ Society [2015] NSSC 25 at para. 19. Also, see, Moon, R., Law and Religious Pluralism in Canada, at p. 231. 58 The Canadian Multiculturalism Act 1988.

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In R v. Big M Drug Mart Ltd59 the SSC ruled the Lord’s Day Act unconstitutional because laws must have a secular purpose: a law based on religious reasons and favoring one denomination over others was deemed unconstitutional. As Dickson CJ then explained:60 In proclaiming the standards of the Christian faith, the Act creates a climate hostile to, and gives the appearance of discrimination against, non-Christian Canadians . . . The theological content of the legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture.

This was followed by the Adler v. Ontario case61 when the SCC determined that: denominational schools had no constitutional right to receive government funding; and therefore that the funding of secular and Catholic schools in Ontario did not breach either s.2(a) or s.15 of the Charter. Twenty years later, in Mouvement laïque québécois,62 the SCC closely followed the sentiment expressed in Big M63 that “[w] hat may appear good and true to the majoritarian religious group, or to the State acting at their behest, may not for religious reasons, be imposed upon citizens who take the contrary view”. It took issue with Gagnon JA’s earlier reference to “the State’s duty to preserve its history, including its multireligious heritage and to “the concept of ‘benevolent neutrality’ being more appropriate to define the State’s duty of religious neutrality”.64 Instead, warning against a benign stance favouring Christianity and wary of such preferencing being used to preserve cultural dominance, the SCC advised that:65 If the State adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. . . .the State’s duty to remain neutral on questions relating to religion cannot be reconciled with a benevolence that would allow it to adhere to a religious belief . . .

Later, this was somewhat moderated by Gascon J: “I concede that the State’s duty of neutrality does not require it to abstain from celebrating and preserving its religious heritage. But that cannot justify the State engaging in a discriminatory practice for religious purposes . . .”.66 Overall this approach is at variance with some ECtHR rulings and with the drift of current judicial rulings and legislative initiatives in the U.S.

59

R v. Big M Drug Mart [1985] 1 SCR 295. Ibid, at para 354. 61 [1996] 3 SCR 60. 62 Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. 63 Big M, op cit, at para 337. 64 Mouvement laïque québécois, op cit, at paras 69 and 76. 65 Ibid, at para 78. 66 Mouvement laïque québécois, op cit, at para. 116. 60

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Indigenous People Indigenous cultural heritage has been described as:67 ideas, objects, artistic expressions, practices, languages, knowledge and places that are valued because they are culturally necessary and meaningful, connected to shared memory, or linked to collective identity. Indigenous cultural heritage is not separate from Indigenous identity and life. It is inherited from ancestors as a gift to the next generations.

The First Nations, Métis and Inuit have established sacred grounds across Canada that for them have great cultural and spiritual significance.68 This heritage has not always been treated with respect. In a policy of ‘cultural genocide’ authorised by the State under by the Indian Act 1876, some 150,000 Aboriginal children were removed from their homes, communities and culture to residential educational institutions: the first such residential school being established in 1620 and the last closing in 1986; triggering what is now recognized as ‘the beginning of an intergenerational cycle of neglect and abuse’.69 Then there were the many years of reported murders and disappearances of scores of indigenous women in British Columbia which passed without much public protest until very recently; so also with the clearcut felling, the mining and the ‘tar sands’ activity on First Nation land.

7.2.2.3

The Religious Exemption

Section 2 of the Civil Marriage Act 2005, the federal statute providing for same sex marriage, permits religious officials “to refuse to perform marriages that are not in accordance with their religious beliefs”. Section 3.1 also provides that “no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction” under any federal law “solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion” under the Charter or “the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom”. By inserting ss.149.1 into the Income Tax Act,70 the 2005 Act provided that religious organisations would not have their charitable registration revoked solely because they or any of their members exercised freedom of conscience and religion in relation to the meaning of marriage. The SCC had also ruled to similar effect in Reference Re Same Sex Marriage.71

67

See, further, at: https://heritagebc.ca/resources/first-peoples-heritage/. See, further, at: https://www.pc.gc.ca/en/culture/autochtones-indigenous. 69 See, Saskatchewan Child Welfare Review Panel Report, ‘For the Good of our Children and Youth: A New Vision, a New Direction’, at p.18. See, further, at: http://saskchildwelfarereview.ca/ CWR-panel-report.pdf. 70 RSC 1985, (5th Supp.), c. 1, as amended. 71 [2004] 3 SCR 698. 68

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All of the above was in keeping with an established acceptance that religious beliefs conferred a degree of immunity from otherwise universally applicable laws. This immunity was significantly extended to provide exemption from equality laws which Cambell J acknowledged, in Trinity Western University v. Nova Scotia Barristers’ Society,72 when he pointed out that the plaintiff university, “like churches and other private institutions, does not have to comply with the equality provisions of the Charter” (see, further, below at Sect. 8.3.4).

7.3

Conscientious Objection and Exemption: An Evolving Policy

There is little evidence in Canada of any equivalent to the centuries of legal milestones in England that trace the history of conscientious objection in relation to the swearing of oaths and vaccinations. In the main, this principle has its Canadian roots in recognition of the importance of ‘conscience’ as the basis of exemption from military service, which subsequently carried over into other areas.

7.3.1

Initial Exemptions

It was Lord Simcoe, the Lieutenant-Governor of Upper Canada, who first provided that recognition. His promise of exemption from compulsory military service to Quakers, Mennonites and Brethren in Christ, to encourage their immigration to Canada, became law with the introduction of the Militia Act 1793.73 The 1793 Act declared that “persons called Quakers, Mennonites and Tunkers (Brethren in Christ) who from certain scruples of conscience, decline bearing arms, shall not be compelled to serve in the said militia”. This wording was significant: it recognised “scruples of conscience” as grounds for the objection. It was not enough to be a Quaker etc, it was necessary to also prove personal matters of conscience: an emphasis on the individual rather than a designated collective. The Militia Act did, however, require the exempted to pay an annual fee to the colonial government—‘a replacement fee’—to maintain the militia which, perhaps, marked the beginning of the present onus on an exempted public health professional to refer patients to a substitute service provider. Subsequently, following Confederation, federal legislation was revised and the “scruples of conscience” clause in the Militia Act 1868 replaced with a requirement to be a member of a pacifist religion. WWI saw the

72

2015 NSSC 25 at para. 10 and endorsed in Law Society of British Columbia v. Trinity Western University 2018 SCC 32 at para. 335. 73 Woodside, D., ‘A brief history of conscientious objection in Canada’, (2015), at: https://www. ohchr.org/Documents/Publications/ConscientiousObjection_en.pdf.

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introduction of the Military Service Act 1917 which restricted exemption from conscription to those who adhered to a religion the “tenet and article of faith” of which prohibited their participation in war. WWII was when ‘conscientious objector’ acquired its modern definition as someone—whether religious or secular—who sought exemption from civic duty on the basis of personal principles or conviction. It has been claimed that “during the two World Wars of the 20th century, conscientious objection to military service was never afforded to non-religious objectors”.74 The swearing of oaths does not seem to have attracted much legal attention. In 1865, the Upper Canada Court of Common Pleas concluded that Jews could, during legal proceedings, swear an oath in any manner suitable to their faith. As was then said “the form of administering the oath is of no consequence in law, so long as it is administered in such form and with such ceremonies as the parties declare to be binding on their consciences”.75 In 1913, Fitzpatrick C.J. of the Supreme Court of Canada affirmed the “absolute right of every person” to be “sworn for every purpose” without a Bible but with raised hand and invoking God (the so-called “Scotch form”) except those where the witness or party claims to have conscientious objections to swearing in that mode or form”.76 At much the same time, the SSC declared that a clause in the federal Marriage Act stipulating that no persons authorized by law to solemnize marriages “can be compelled to solemnize a marriage to which any impediment exists according to the doctrine and belief of his religion, and the discipline of the church to which he belongs”.77 Not until the Roach decision78 in 1994 did the matter of swearing oaths trouble the judiciary. This case concerned an applicant for Canadian citizenship who was unwilling to swear allegiance to the Queen as required in the citizenship ceremony and sought a declaration from the court that he was entitled to become a citizen without taking the oath or affirmation in its current form. He argued that the oath was a violation of his right to freedom of conscience under the Charter (among other rights violations). While the majority found no Charter violations, the case is mainly of interest because of what Justice Linden had to say about freedom of conscience:79 It seems, therefore, that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles. These are serious matters of

74

See, Bird (2019), p. 60. Frank v. Carson, [1865] OJ 147, 15 UCCP 135 (Upp Can Ct Com Pleas). 76 Curry v. The King, [1913] SCR 532 at 535, 15 DLR 347. This “conscience clause”, endorsed by the Canada Evidence Act 1985, ss, 13 and 14, now provides authority for affirming rather than swearing for court witnesses. Thereafter, the swearing of oaths would seem to have remained non-contentious until Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 FC 406. 77 In re Marriage Laws, [1912] SCR 132 at 160, 6 DLR 588. 78 Roach v. Canada (Minister of State for Multiculturalism and Citizenship) op cit. 79 See, also, Lawen Estate v. Nova Scotia (Attorney General) [2019] NSSC 162 (CanLII) (NSSC), paras. 74–5. 75

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conscience. Consequently the appellant is not limited to challenging the oath or affirmation on the basis of a belief grounded in religion in order to rely on freedom of conscience under paragraph 2(a) of the Charter. For example, a secular conscientious objection to service in the military might well fall within the ambit of freedom of conscience, though not religion. However, as Madam Justice Wilson indicated, ‘conscience’ and ‘religion’ have related meanings in that they both describe the location of profound moral and ethical beliefs, as distinguished from political or other beliefs which are protected by paragraph 2(b).

Subsequently, both the Chainnigh80 and McAteer81 cases concerned anti -monarchists who conscientiously objected to taking an oath of allegiance to the Queen. The record regarding vaccinations is even thinner: there would appear to be no substantive Canadian history of jurisprudence relating to conscientious objection in this context.

7.3.1.1

Legal Recognition of ‘Conscience’

The early recognition given to ‘conscience’ and its legal status, additional to that customarily given to religion, was a particular feature of Canadian law. This may, perhaps, be attributed to the politics of religion in pre-Confederation Canada and the consequent wariness with which the courts approached religious matters well into the twentieth century: given the religious polarisation—cultural, geographical and political—judicial pragmatism focused on ‘conscience’ as an expedient means of differentiating the individual from his or her membership of a religion.

7.3.1.2

An Aspect of Citizenship

This approach, and evidence that it was shaped by awareness of a need to focus on the individual as a citizen and not as a representative of a religion, was illustrated in cases such as Chaput v. Romain82 which concerned the conscientious objection of Jehovah’s Witnesses to the intrusion of police, acting without a warrant, into a religious meeting being held in a private home. Taschereau J then declared that because the “conscience” of each person is a personal matter Canada has no State religion, no person is obliged to adhere to a religion, and all religions are on an equal footing.83 Some 20 years later, in Re Civil Service Association Ontario (Inc) and Anderson et al,84 while the court again focused on conscience it found that in this case the claimant’s conscience was informed by his religion as he “regards the matter

80

Giolla Chainnigh v. Canada (Attorney General). McAteer v. Canada (Attorney General) [2014] CarswellOnt 10955. 82 [1955] SCR 834, 1 DLR (2d) 241. 83 Ibid, at p. 840. 84 (1976), 9 OR (2d) 341, [1975] OJ No 2403 (HCJ). 81

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of making individual moral judgments on issues of this sort as being an element of his religious convictions or belief”.85 In the interim between these two cases, the Canadian Bill of Rights was enacted but without any recognition for freedom of conscience. The political awareness of a need to bridge the religious/cultural divisions, then characteristic of Canadian society, led to the protracted Charter negotiations with its resulting prominent focus on ‘conscience’ alongside ‘religion’ as joint citizenship freedoms.

7.3.2

Abortion, Contraception and Adoption: A Context for Developing Policy

Family planning, particularly birth control, can be problematic in the more geographically remote provinces and, of course, within some of the more conservative religious communities. Both accessing and delivering appropriate services can attract objections based on religion/belief/conscience. Abortion, de-criminalised in 1969, was further freed of regulatory constraints by the SCC ruling in R v. Morgentaler86 which found that s.251 of the Criminal Code violated the Charter of Rights and Freedoms, s.7, a decision that effectively ended federal law relating to abortion. Nonetheless, clashes between conscientiously objecting religious entities and State service providers have continued, being particularly evident in the many lengthy court battles involving anti-abortion groups,87 an anti-pornography group,88 campaigning pro-life groups,89 and abortion clinics90 addressing the uncertain status of the foetus in Canadian law.91 The long history of Morgentaler prosecutions92 records the changing legal status of abortion clinics in Canada. Coterminously, rights to legally access contraceptives were also contentious. The Criminal Law Amendment Act 1969 made it legal for the first time to use, sell and possess contraceptives. As elsewhere in the Part III jurisdictions, contraception generally and ‘the morning after pill’ in particular are a focus of protest from religious entities especially the Catholic Church.

85

Ibid. [1988] 1 SCR 30. 87 E.g., Human Life International in Canada Inc. v. Canada (Minister of National Revenue) FCJ No. 365, March 18, 1998 and Alliance for Life v. Canada (MNR) 1999 FCJ No. 658, May 5, 1999. 88 See, Positive Action Against Pornography v. MNR [1988] 1 CTC 232. 89 See, Interfaith Development Education Association, Burlington v. MNR, 97 DTC 5424. 90 Everywoman’s Health Centre Society (1988) v. Canada (MNR) [1991] 136 NR 380. 91 Tremblay v. Daigle, [1989] 2 SCR 530 at p. 533. 92 Including R v. Morgentaler, [1988] 1 SCR 30 and R. v. Morgentaler 1993 CanLII 74 [1993] 3 SCR 463. Also, see: Borowski v. Canada (Attorney General), [1989] 1 SCR 342 and Tremblay v. Daigle, op cit. 86

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Adoption, the earliest socially and legally acceptable means of addressing unwanted pregnancies, was first introduced in New Brunswick in 1878 in order to save the babies of unmarried mothers from the stigma of ‘illegitimacy’ by placing them with married couples.93 Its particular relevance for conscientious objection, however, lies in its State application to First Nations children. During the period 1960 to the mid-1980s, in keeping with similar cultural assimilation programmes in the U.S. and Australia, many thousands of indigenous children—perhaps 20,000— were forcibly separated from their birth families by government social workers and religious organisations, and placed for adoption with non-indigenous families in Canada and elsewhere; a practice that continued until condemned by a government inquiry in the late 1980s.94 The seminal case of Racine v. Woods95 was representative of many similar circumstances where indigenous parents conscientiously objected to the placement of their child with non-indigenous adopters claiming that in so doing the State was violating the rights of Indigenous people to ensure that the upbringing of their children complied with and contributed to the perpetuation of indigenous beliefs and culture. The reverberations of this case and the scandal of the ‘sixties scoop’ continue to overshadow relationships between government authorities and First Nations and to compromise the contemporary use of adoption and other child care services in an indigenous context.

7.3.3

Same Sex Relationships: Evolving Contemporary Policy

The prolonged confrontation between social activists and objectors—conscientious and otherwise—at each step along the road to legalising same sex relationships may not have generated as much violence or court cases as in the U.S. but it was still acrimonious with the rancour continuing into the current controversy over SOGI related educational material in the public school system. The first such step was taken with the decriminalisation of homosexuality, legalised by the Criminal Law Amendment Act (also known as Bill C-150) in June 1969. This added an exemption to the Criminal Code legalising same sex relations between consenting adults aged at least 21 in private, but not until 1987 was the offence of gross indecency repealed. The next steps were taken in the context of the equality narrative which records the journey to full recognition in law for same sex couples. This followed a series of milestones marked by the conscientious objections of those protesting against what they perceived as another stage in the undermining of traditional religious values and/or their cultural heritage.

93

See, further, at: http://www.thecanadianencyclopedia.ca/en/article/adoption/. See, Nichols (2017). 95 [1983] 2 S.C.R. 173. 94

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The 1995 case of Egan v. Canada,96 probably the first significant ruling in that direction, resulted from the objection of a same sex couple to their exclusion from statutory welfare benefits—specifically, eligibility for spousal payments under the Old Age Security Act—designed solely for heterosexual couples. Shortly afterwards the SCC decision in M. v. H.97 paved the way for recognition of the rights of samesex couples to equal treatment under the Constitution. Not, however, until Halpern98 did the judiciary conclude that the common law definition of marriage as “the voluntary union for life of one man and one woman to the exclusion of all others” infringed the equality rights of same sex couples under s.15 of the Charter. It then rejected the conscientious objections of a Christian Church that to redefine marriage would infringe its freedom of religion, contrary to s.2(a), and its equality rights as a religious institution. This was followed immmediately by Reference Re Same Sex Marriage99 where the SCC found that the meaning of marriage is not frozen in time, in accordance with its definition under s.91(26) of the Constitution Act 1867, but must be allowed to evolve with Canadian society which currently represents a plurality of groups. The Civil Marriage Act 2005 finally extended the meaning of marriage to include same-sex relationships under Canadian federal law a decade before the Obergefell ruling in the U.S. The final step—so far—along this road came with Bill C-16. which took effect in June 2017, updating the Canadian Human Rights Act and the Criminal Code, to include “gender identity and gender expression” as protected grounds from discrimination, hate publications and advocating genocide. It also added “gender identity and expression” to the list of aggravating factors in sentencing, where the accused commits a criminal offence against an individual because of those personal characteristics. While the legislative process itself generated objections, and there have been a number of cases where parenting by a trans person have been challenged, the prohibition against discrimination in this federal legislation operates to prevent any obstruction of a marriage involving a trans person or persons including public expressions of conscientious objection.

7.3.4

Medical Advancement: Contiguous Policy Development

As medical science continues to extend the range of possible interventions into matters integral to ‘life’ and therefore central to traditional religious beliefs, the range of opportunities for conscientious objection increases commensurately. One such extension has been in relation to genetic modification and embryo research.

96

[1995] 2 SCR 513. [1999] 2 SCR 3. 98 Halpern v. Canada (Attorney General) [2003] O.J. No. 2268. 99 [2004] 3 SCR 698 (aka, Vogel v. Canada). 97

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Genetic modification in general gives rise to concern for many, most often and most acutely for religious adherents, but this rarely translates into litigation unless and until issues of contract or property are triggered. One such instance featured in Harvard College100 when the SCC found that higher life forms are not patentable: patents are applicable to inventions including for “manufacture” which in turn denotes “a non-living mechanistic product or process”;101 it does not apply to “a conscious, sentient living creature”;102 higher life forms have unique qualities and characteristics that transcend the particular genetic matter of which they are composed. This issue and the resulting ruling generated a considerable volume of conscientious objections from those who argue that the court’s rationale, being based upon a differentiation between higher and lower life forms, is “more properly a matter of religion than a matter of law”. Subsequently, in Monsanto,103 the SCC adopted much the same rationale when it confined itself to affirming that Monsanto had patent rights to products and processes if not to the plant itself. The court, plainly aware of the analogous implications for human reproductive research (use of stem cells, cultivation of embryos etc), presciently noted the implications for conscientious objection in its comment that “inventions in the field of agriculture may give rise to concerns not raised in other fields - moral concerns about whether it is right to manipulate genes . . .”.104 Interventions into matters determinative of death are equally as central to traditional religious beliefs as those determinative of life. The 2015 landmark case of Carter v. Canada105 was inevitably therefore also a landmark in the long history of conscientious objections—for and against—the prospect of changing the law to permit medically assisted death for those, who being terminally ill, wished to be relieved of their suffering.

7.4

From Policy to Legislation

Preserving and promoting the multicultural nature of Canadian society, as recognised in s.27 of the Charter and by the Multiculturalism Act, is the primary driver of contemporary government policy.106 This policy is now seriously challenged by a pressing need to address SOGI related issues, manage public expressions of religious identity and ensure application of equality and non-discrimination law.

100

Harvard College v. Canada (Commissioner of Patents) [2002] 4 SCR 45, 2002 SCC 76. Ibid at para. 159. 102 Ibid at para. 160. 103 Monsanto v. Schmeiser [2004] 1 SCR 902, 2004 SCC 34. 104 Ibid at para. 93. 105 2015 SCC 5. 106 See, further, Ryder (2005b), pp. 178–194. 101

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The indications so far suggest that the Canadian approach to this challenge is markedly different from that pursued in the U.S. through its ‘religious liberty laws’.

7.4.1

Universal Legislative Constraints

Unquestionably, the levelling effect of equality law is imposing constraints upon traditional religious beliefs and upon the individuals and organisations—schools, hospitals etc—obligated to act in accordance with those beliefs.

7.4.1.1

Laws that Unfairly Burden a Minority

Not all laws that burden a minority are necessarily unfair as illustrated by Bruker v. Marcovitz107 in which a Jewish husband’s 15 year—avowedly conscientious objection—to granting his wife a get was held to be contrary to public policy as “under Canadian law, marriage and divorce are available equally to men and women”.108 Abella J warned that this well-established Jewish principle, confining the granting of a get exclusively to the discretion of a husband, was incompatible with Canadian law. There have been a number of cases109 requiring the judiciary to weigh the welfare interests of a child against the conscientious objections of a claimant that a law of universal application has imposed an unfair burden on the right to freedom of religion. One such was Young v. Young110 which concerned the protest of a non-custodial parent—a Jehovah’s Witness—that his freedom of religion, including his right to develop the children’s religious belief, was being obstructed by the mother. The SCC took the view that the welfare of the child was the over-riding principle and therefore the authority of the custodial parent to make decisions relating to religious activities must be secured in order to protect the children from any harmful stress. The same approach was evident in B. (R.) v. Children’s Aid Society of Metropolitan Toronto111 and in A.C. v. Manitoba Director of Child and Family Services112 when in both cases the SCC gave greater weight to the welfare interests of a child than to the conscientious objections of Jehovah's Witness parents to the provision of blood products in the medical treatment deemed necessary to preserve the health of that child.

107

(2007) 3 SCR. Ibid at 3. 109 Hockey v. Hockey, (1989) 60 D.L.R. (4th) 765 (Ont. Div. Ct.). P.(D.) v. S.(C.) [1993] 4 S.C.R. 141 and Young v. Young [1993] 4 SCR 3. 110 [1993] 4 SCR 3. 111 [1994] SCJ No 24. 112 [2009] SCJ No 30. 108

7.4 From Policy to Legislation

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Criminal Law Constraints

The Charter, s.2(b), guarantee of protection for free speech is probably the single most relevant legal provision relating to conscientious objection. This finds federal reinforcement in the Criminal Code, s.319(1), constraints on hate speech. In general, the warning of Karakatsanis J Hryniak v. Mauldin is also pertinent:113 “ensuring access to justice is the greatest challenge to the rule of law in Canada today . . . a culture shift is required”.114

Covid-19 Pandemic Constraints Government approaches to the Covid-19 pandemic have varied considerably across the 13 Canadian provinces and territories and lacked co-ordination. As in the U.S., while federal government took the leading role in directing economic measures to combat its effects, the public health response was largely left to each province and territory and consisted of an uncertain mix of law and guidance. Of note is the fact that federal government chose not to invoke the Emergency Management Act, which would have given it sweeping powers to regulate or distribute essential goods and services, render persons or services essential, and evacuate or remove persons from a region.

7.4.2

Contemporary Government Initiatives

For some, the introduction of legislation governing SOGI related matters and the manifesting of religious belief in public has conflated with their religious beliefs to induce a renewed interest in their traditional culture and associated Christian values. This increases the probability of future conscientious objections and service denial issues.

7.4.2.1

SOGI Related Initiatives

Bill C-16, prohibiting discrimination based on gender identity and gender expression, was incorporated into Canadian Human Rights Law and the Criminal Code to become law throughout Canada, in June 2017. The Bill makes it illegal to deny services, employment, accommodation and similar benefits to individuals based on their gender identity or gender expression within a federal regulated industry. Its implications for ‘compelled speech’ have generated considerable controversy. 113 114

2014 SCC 7. Ibid at paras 1–2.

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In addition the “attestation” clause introduced to the federal Summer Jobs programme requiring applicants to affirm their support for government policy on SOGI related matters and abortion has proved compromising for many religious organisations. Furthermore, the introduction of mandatory SOGI 123 content to the public school curriculum is also proving to be very controversial.

7.4.2.2

Religion Related Initiatives

The above-mentioned Bill 21 prohibits public service staff in Québec from wearing religious symbols. Although the legislative intent is, purportedly, to foster adherence to State religious neutrality, as some provisions negatively impact upon particular religious groups but less so on others, and on women more so than on men, it is open to question whether the Bill is compatible with principles of neutrality and equality.

7.5

Legislative Framework: International and Domestic

Canada has in place a modern domestic platform of human rights and equality legislation reinforced by international treaties, conventions and protocols.

7.5.1

International Legislation

Canada signed and ratified the Universal Declaration of Human Rights in 1948 and has since played a leading role in endorsing other international treaties, conventions, protocols etc (see, further, Sect. 3.2).

7.5.1.1

The International Covenant on Civil and Political Rights (ICCPR)

Having ratified the ICCPR in 1976, Canada subsequently ratified Optional Protocol 1.115

115

See, Waldman v. Canada, Communication No. 694/1996.

7.5 Legislative Framework: International and Domestic

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The UN Declaration on the Rights of Indigenous People (UNDRIP)

Having refused to sign in 2007, Canada officially adopted and undertook to implement this Declaration in 2016.

7.5.1.3

Other

Ratification or accession has also been completed in relation to: the International Convention on the Elimination of All Forms of Racial Discrimination (1970); the International Covenant on Economic, Social and Cultural Rights (1976); and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981).

7.5.2

Domestic Constitution and Legislation

The Constitution Act 1982, containing the Canadian Charter of Rights and Freedom, is of central importance and, as has been noted, “no individuals or religious communities enjoy any less Charter protection than the major and recognizable religions”.116

7.5.2.1

The Constitution

The Constitution of Canada consists of the Constitution Act 1982, together with its predecessor the Constitution Act 1867 (formerly the British North America Act 1867), and all other statutes and orders referred to in the schedule and any amendments. Unlike its U.S. counterpart, the Canadian constitution, does not have an antiestablishment clause.

7.5.2.2

The Canadian Charter of Rights and Freedoms

The Charter takes priority over all other federal and provincial legislation. Section 2 declares that everyone has the following “fundamental freedoms: (a) freedom of conscience and religion; and (b) freedom of thought, belief, opinion and expression . . .” The fact that separate recognition is given to ‘conscience’—in addition to ‘religion’ and ‘belief’—is of particular importance for the purposes of this book.

116

R v. Laws (1998) 41 OR (3d) 499 Ont. CA), per McMurtry CJO at para. 24.

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Under s.1, the specified freedoms are subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” and to a requirement that ‘freedom’ be interpreted in accordance with the “preservation and enhancement of the multicultural heritage of Canada” (s.27).117 The specified freedoms are all subject to Clause 33, the “notwithstanding” caveat, which allows the federal or any provincial government to pass laws that breach Charter rights in relation to such matters. Section 15(1), provides a specific guarantee of protection from religious discrimination. The SCC has established that there is no hierarchy of Charter rights: all have equal status, no one is more important than the others; and no right is absolute, each is limited by the rights and freedom of others.118 The ‘Oakes test’, established by the SCC in R. v. Oakes119 for deciding when an infringement of a Charter right was reasonable and justifiable, has served that purpose for the past 30 years. Firstly, it requires the purpose of the infringing law to be of sufficient importance to warrant overriding a constitutionally protected right or freedom. Secondly, if that is the case then there must be a “proportionality test” to establish that the means chosen are reasonable and demonstrably justified: the law must be rationally connected to the objective; the law must impair the right no more than is necessary to accomplish the objective, and the law must not have a disproportionately severe effect on the rights infringed. The ‘Oakes test’ must now be viewed in the light of the Doré framework120 which is used when an administrative agency is involved (e.g in Loyola121). As Guy puts it, in Doré the SCC held that administrative discretionary decisions implicating a Charter right “should be reviewed using a values - based, administrative law approach focused on proportionality, one that asks whether the decision - maker has properly balanced the relevant Charter values and statutory objectives at issue”.122 There is currently considerable uncertainty as to how the Oakes and Doré tests are to operate in conjunction.123

117

See, for example, R. v. S. (R.D.) (1997), 118 CCC (3d) 353 (SCC), per Cory J at 385. Reference re Same-Sex Marriage, [2004] 3 SCR 698; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at p. 877; R. v. Mills, [1999] 3 S.C.R. 668 at para. 61. 119 [1986] 1 SCR 103. 120 Doré v. Barreau du Québec, 2012 SCC 12. 121 Loyola High School v. Québec (Attorney General), 2015 SCC 12. 122 See, Guy (2015), p. 1, at: https://tspace.library.utoronto.ca/bitstream/1807/69099/3/Guy_ Trevor_R_201503_LLM_thesis.pdf. 123 See, Trinity Western University v. Law Society of British Columbia, 2015 BCSC 2326 and Gehl v. Canada (Attorney General), 2017 ONCA 319 (CanLII). 118

7.5 Legislative Framework: International and Domestic

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The Transgender Rights Bill C 16 2017

This federal legislation incorporated gender identity/expression into Canadian Human Rights Law and into the Criminal Code. It introduced the concept of ‘compelled speech’ into Canadian law, requiring the use of gender-neutral pronouns in general speech, a requirement which if breached may be interpreted as ‘hate speech’ and be prosecuted accordingly.124

7.5.2.4

The Employment Equity Act 1996

This legislation promotes equity in the workplace for the four designated groups: women, Aboriginal peoples, persons with disabilities, and members of visible minorities. In addition the Canadian government has passed into law a set of regulations, the Federal Contractors Program 1986 and the Employment Equity Act 1996, to address employment opportunities and benefits.

7.5.2.5

The Canadian Multiculturalism Act 1988

A statute giving official recognition to multiculturalism as a fundamental characteristic of Canadian society and requiring federal institutions to take this into account when exercising their functions.

7.5.2.6

The International Centre for Human Rights and Democratic Development Act 1985

As stated in the preliminaries, “the purpose of this Act is to extend the laws in Canada that proscribe discrimination”.

7.5.2.7

The Statutes of Canada 1841–1851

Statutes enacted prior to confederation in 1867 continue to have a resonance in some constitutional and contemporary statutory provisions. Included in that legacy is a guarantee, under s.175 of the Statutes of Canada 1851, to ensure ‘the free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference . . .’.

124

See, further, at: https://torontoist.com/2016/12/are-jordan-petersons-claims-about-bill-c-16correct/.

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7.5.3

Other Legislation

The Criminal Code is a relevant federal statute as it prohibits hate offences based on religion. Province level human rights legislation prohibits, among other things, discrimination on the grounds of race, religion or creed, colour, nationality, ancestry, and place of origin.125

7.5.3.1

Equality and Non-Discrimination

The Canadian Human Rights Act 1985 improved and extended the largely ineffective Canadian Bill of Rights 1960.126 Section 3(1) broadened the law to ensure equal opportunity for individuals, to expressly prohibit discrimination on a federal basis (replicated at province and territory levels) and to prohibit discrimination on grounds that include religion and sexual orientation. Together with the Canadian Charter of Rights and Freedoms, the 1985 Act provides the basic federal legislative framework governing issues arising in the context of the Church/State relationship.

7.6

Framework of Courts and Regulatory Bodies

Canada has in place a modern hierarchical structure of independent courts and regulatory bodies not untypical of other Part III common law jurisdictions.

7.6.1

International Courts and Regulatory Bodies

The jurisdictional division between federal and provincial government naturally affects the courts and regulatory machinery for law relating to the Church/State relationship. Canada accepts the jurisdiction of the International Criminal Court and indeed was largely responsible for establishing it. Unlike the U.S., it also accepts the International Court of Justice while both accept the Universal Periodic Review process which provides an international peer monitoring forum for the ongoing

125

The Canadian Multiculturalism Act 1985 and the Canadian Race Relations Foundation Act 1991 have also set benchmarks for legislation at provincial and territorial level. 126 Richard Moon adds: “The Canadian Bill of Rights and the CHRA are very different instruments. The CBR called on courts to review federal laws – and was regarded as a quasi-constitutional document – even if hopes for it were not realized because of the courts’ reticence. The CHRA is ordinary human rights law” (note to author, 20.12.2019).

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review of national progress in addressing human rights concerns including those relating to religion and belief.

7.6.1.1

The Human Rights Committee (HRC)

This body of independent experts monitors Canada’s implementation of ICCPR provisions. In 1999 it condemned Canada, particularly Ontario, for exclusively funding Catholic schools in violation of Article 26 of the ICCPR and did so again in 2005 when it published its Concluding Observations regarding Canada’s fifth periodic report and observed that Canada had failed to “adopt steps in order to eliminate discrimination on the basis of religion in the funding of schools in Ontario”.

7.6.2

Domestic Courts and Regulatory Bodies

The system of regulatory tribunals with a right of appeal to a court, and ultimately to a Supreme Court, is replicated in each province and territory.

7.6.2.1

The Supreme Court of Canada (SCC)

This final court of appeal has a federal jurisdiction enabling it to adjudicate on, and to formulate governing principles in relation to, cases drawn from all areas of law including those relating to the religion and human rights. States and territories each have their own judicial and regulatory systems.

7.6.2.2

The Canadian Human Rights Commission (CHRC)

The Canadian Human Rights Commission, an independent body established at federal level, was created to administer the Canadian Human Rights Act 1977 and subsequently undertook regulatory responsibility for the Employment Equity Act 1996.

7.6.2.3

The Canadian Human Rights Tribunal

Established under the Canadian Human Rights Act 1977, the jurisdiction of this Tribunal is restricted to federally regulated activities and thus most human rights claims come before the provincial tribunals. It is independent of the Canadian Human Rights Commission which refers cases to it for adjudication under the Act.

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Fundamental Human Rights and Conscience

The fundamental human rights to freedom of expression, association/assembly and religion/belief provide protections for individuals from possible encroachment by the State on behalf of the interests of the majority.

7.7.1

Freedom of Expression

The Criminal Code, s.181, stated that “[e]very one who willfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment . . .”. This, in a sense, addressed expressions that consituted the opposite of conscientious objection and was examined by the SCC during the prosecution of holocaust denial publications in Zundel v. Canada.127 The court found that s.181 violated s.2(b) of the Canadian Charter of Rights and Freedoms because the restriction on all expressions “likely to cause injury or mischief to a public interest” was too broad and imprisonment for expression was unreasonable. Four years later, in Ross v. Canada,128 the subject was a former teacher, who in his spare time published books and pamphlets, and made public statements, reflecting his discriminatory views in relation to Jews.129 The Human Rights Board of Inquiry, while not disputing the cogency and sincerity of his views (nor, presumably, his right to maintain them privately) concluded that by persisting in his public dissemination he had contributed to a ‘poisoned environment’ within the school district and recommended that he be transferred to a non-teaching position. A recommendation endorsed by the SCC and also by the UN Human Rights Committee which agreed that the disciplinary action did not constitute a violation of the freedom of expression as protected by Article 19 (ICCPR). The legal difficulties in differentiating between the public dissemination of beliefs that are harmful, constitute discrimination and should not be tolerated and those that despite being harmful must be accommodated in a democratic society, were demonstrated in a sequence of cases. Boissoin130 concerned a letter, written by the appellant to a newspaper, expressing disparaging comments about homosexuals. In overturning the HRC finding of incitement to hatred and upholding the relative importance of freedom of speech, Wilson J ruled that the language used must disclose a real intention to discriminate or incite others to discriminate: “the need for great care when applying the true meaning of ‘hate and contempt’ to any impugned message cannot be overemphasized. Any potential restriction upon 127

[1992] 2 SCR 731. (1996), 25 C.H.R.R. D/175 (SCC). 129 18 October 2000, Communication No. 736/1997 (UN Human Rights Committee). 130 Boisson v. Lund 2009 ABQB 592. 128

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freedom of expression demands no less”.131 The same approach was taken in Saskatchewan (Human Rights Commission) v. Whatcott,132 regarding flyers that denounced gays and lesbians, when the SCC emphasized the need to pursue true hate speech, not just offensive language. Similarly, in Trinity Western,133 when the court found no concrete evidence that holding beliefs about homosexuality would result in actions by its graduates that would be discriminatory. It would seem that the later cases are representative of permissible public displays of conscientious objection in a way not permissible in Zundel and Ross where the intent went beyond objection to deliberately discriminate as expressly prohibited in law.

7.7.1.1

Personal Identity Issues

The right to an authentic identity is now well-established throughout Canada,134 accompanied by the right for it to be SOGI compliant and by that of a trans person to have their gender identity recognised in official documents such as birth certificates, driving licenses and passports.135 The right of a child to be registered as non-binary is currently being fought in the courts as a consequence of the objection—admittedly more social activist than conscientious—of Kori Doty a non-binary trans person, to the prevailing Vital Statistics Acts which had no provision for her child to be so registered on their birth certificate. The right to manifest a religious identity by wearing religion specific apparel—among other means—can be contentious and has become more so in Québec with the introduction of Bill 21136 (see, further, below at Sect. 7.3.1).

Indigenous People Canada’s Indigenous people—the First Nations, Inuit and Métis—consist of many sub-groups (e.g., Red River Métis, Western Métis; Salish; Inuvialuit, Nunavut; Cree, Ojibwa etc) which in turn are sub-divided into bands, clans and family groups.137 They are most often differentiated in terms of ethnicity, cultural heritage and geographical location. In legal terms, they are defined as ‘Indian’ under the Indian 131

Ibid, at para. 83. [2013] 1 SCR 467. 133 Trinity Western University v. British Columbia College of Teachers (2001), 39 C.H.R.R. D/357. 2001 SCC 31. 134 A.B. v. Minister of Transportation and Minister of Government Services, (Settlement, HRTO 2006), XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 (CanLII) and C. F. v. Alberta, 2014 Alberta Queen’s Bench 237. 135 Bill C-16 added “gender identity and expression” to Canada’s Human Rights Code and its Criminal Code. 136 Entitled ‘An Act respecting the laïcité of the State’. 137 See, further, Frideres (2008), pp. 313–342. 132

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Act 1876 and its later amendments. Until 1960, ‘Indian’ and ‘citizen’ were mutually exclusive, the former being denied the vote. Identity, for an Indigenous person, is inseperable from culture: meaning the accumulated teachings of ancestors; the “basis of their traditions, customs, protocols, values, spirituality, ceremonies, language, ways of knowing and being, and of connections to the land”.138

7.7.1.2

Blasphemy and Proselytism

Blasphemous libel was a crime under s.296 of the Criminal Code 1985 until its repeal in 2018. The parameters for proselytism were subsequently amended and are now set by s.319(2) of the Code. In Friesen139 an employee was sacked because he refused to stop preaching in the workplace. His sacking was upheld because: other employees had a right to work in an environment where they were not subject to religious preaching; their objections—conscientious and otherwise—were wholly justified. The requirement not to preach was BFOR compatible and the employer’s duty to accommodate an employee’s beliefs did not extend to licensing such activity in the workplace.

7.7.1.3

Whistleblowers

The relevant federal legislative framework consists of the Public Servants Disclosure Protection Act 2007 and the Criminal Code 2004, s.425.1, providing protection for whistleblowers in the public and private sectors respectively. These provisions are acknowledged to be wholly inadequate and consequently are seldom used.

Disclosures and the Law The 2007 Act, replicated in several provinces and territories, prohibits employers from taking retributive action against a public servant who has made a protected disclosure or has, in good faith, cooperated in an investigation into a disclosure or an investigation commenced under the Act.

In a Public Service Context The Public Servants Disclosure Protection Act (PSDPA), which came into effect in 2007, was the first and remains the only law of its kind in Canada. It established a Public Service Commissioner, who receives complaints from federal public service

138 139

See, further, at: https://www.ictinc.ca/blog/why-is-indigenous-cultural-continuity-critical. Friesen v. Fisher Bay Seafood (2008), 65 C.H.R.R. D/400, 2009 BCHRT 1.

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whistleblowers needing protection from reprisals, as well as a tribunal to hear their cases, but only eight cases reached the tribunal in its first 10 years and only one progressed through to completion. An early recorded example of public service whistleblowing—with conscientious objection connotations—was the Bryce expose of the mistreatment of First Nation students in the residential school system.140

In a National Security Context Members of the Canadian armed forces are excluded from the protection available under the PSDPA. While the issue of the protection available in law for national security related disclosures of whistleblowers has never been tested in Canadian courts, Mark Friedman suggests that if this should ever happen it is probable the protection available will be found to be inadequate.141 Drawing from Edward Snowden’s disclosures of secret National Security Agency documents, which reveal that the Communications Security Establishment Canada (CSEC) attempted to spy on the Brazilian government, Friedman concludes that the Security of Information Act 1985 would not afford any substantive protection for Snowden in Canada.

7.7.2

Right to Freedom of Association/Assembly

The Charter, s.2(d), entitles individuals to establish, belong to, maintain, or leave any legal organization.

7.7.2.1

Corporate Entities

The issue of whether or not corporate entities can be vested with a ‘conscience’ arose in Lafontaine142 when the SCC examined the conscientious objection of a religious community to a zoning by-law which allegedly infringed their freedom of religion as it made it impossible for them to build a place of worship. The SCC did not pursue the freedom of religion argument, and therefore was able to sidestep the issue of corporate conscience, but it did not question the locus standi of the community to act as it did on a matter of conscience. The court held that the Municipality violated its

140

See, Bryce, P., The Story of a National Crime: Being a Record of the Health Conditions of the Indians of Canada from 1904 to 1921, at: https://archive.org/details/storyofnationalc00brycuoft. 141 Friedman (2015), at: digitalcommons.schulichlaw.dal.ca/djls/. 142 Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 SCR 650, 2004 SCC 48.

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duty of procedural fairness owed to the Congregation by refusing to provide reasons to justify its decisions to deny two of the applications for rezoning. Subsequently, the SCC in Loyola143 was clear that religious freedom protected “both the individual and collective aspects of religious belief” and this approach was confirmed in a succession of Trinity Western cases.144

7.7.3

Right to Freedom of Religion

“For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society,” as the SCC pointed out in Trinity Western.145 Freedom of conscience and religion, as guaranteed under s.2(a) of the Charter, includes in the words of Dickson CJ “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.”146 He went on to explain:147 The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided, inter alia, only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously held beliefs and manifestations and are therefore protected by the Charter. Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice. It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with religion. For the present case it is sufficient in my opinion to say that whatever else freedom of conscience and religion may mean, it must at the very least mean this: government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose.

Shortly afterwards, Wilson J considered the relationship between conscience and religion in Morgentaler:148 [I]n a free and democratic society ‘freedom of conscience and religion’ should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. Indeed, as a matter of statutory interpretation, ‘conscience’ and ‘religion’ should not be treated as tautologous if capable of independent, although related, meaning.

143

Loyola High School v. Quebec (Attorney General), 2015 SCC 12, per Abella J. at para 59. See: Trinity Western University v. British Columbia College of Teachers (2001), 39 C.H.R.R. D/357, 2001 SCC 31; Law Society of BC v. Trinity Western University, 2018 SCC 32; and Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. 145 Law Society of BC v. Trinity Western University, 2018 SCC 32, at para. 36. 146 R. v. Big M. Drug Mart, [1985] 1 SCR 295, per Dickson CJ. 147 Ibid, at para.124. 148 R v. Morgentaler (1988) 1 SCR 30, at para. 313. 144

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To which, a few years later, Linden JA added:149 It seems, therefore, that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from estab- lished religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not neces- sarily founded on any organized religious principles. These are serious matters of conscience

The right to freedom of religion—including matters of conscience—is protected by the Charter of Rights and Freedoms, s.15, and is infringed, as the SCC stated in Ktunaxa Nation, when a claimant demonstrates:150 (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned State conduct interferes, in a manner that is non-trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief.

Adding that “where State conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom”.

7.7.3.1

Manifesting Beliefs

Dickson CJ, in the above-mentioned quote from Big M,151 clearly implied that Charter protection could be extended beyond traditionally recognised religious beliefs to include the holding and manifesting of other forms of belief and matters of conscience.

Religion Specific Clothing, Symbols, Customs Etc The wearing of religious clothing in public—e.g. the burqua—together with exhibiting religious practices—e.g. the Christmas nativity scene—singing religious songs—e.g. Amazing Grace—or playing religious music—e.g. Hadyn—are among the many examples of manifesting religion that can either represent or serve to attract conscientious objections to a prevailing secularism or other culture. The weight of the Christian cultural legacy was illustrated in McAteer v. Canada (Attorney General)152 when the claimants objected to a part of the citizenship oath— “I will be faithful and bear true allegiance to Her Majesty the Queen Elizabeth the 149

Roach v. Canada (Minister of State for Multiculturalism and Citizenship) (1994) 2 FCR 406, at para. 25. 150 Ktunaxa Nation v. British Columbia, [2017] SCC 54, at para 68. See, also, Chamberlain v. Surrey School District No 36 (2002) 4 SCR 710 and Law Society of BC v. Trinity Western University, 2018 SCC 32, at para. 318, citing in support: Amselem, at paras. 56 and 65; Multani, at para. 34; Loyola, at para. 134. 151 R v. Big M Drug Mart Ltd., op cit, at para. 123. 152 2014 ONCA 578, 121 OR (3d) 1.

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Second, Queen of Canada, Her Heirs and Successors”—on the grounds that it unjustifiably limited their freedom of conscience and religion, freedom of expression, and equality rights under the Charter. The court dismissed the complaint “because the oath is secular and is not an oath to the Queen in her personal capacity but to our form of government of which the Queen is a symbol”, a finding which, it has to be said, seems to fly in the face of centuries of decisions upholding the legitimacy of substituting an affirmation for a sworn oath in such circumstances. Québec’s Bill 21, which became law in June 2019, now prohibits the display of religious symbols by public-sector workers in the workplace. The opposition and strength of the related conscientious objection was represented in Ichrak Nourel Hak, et al v. Attorney General of Québec.153 Ultimately, in 2020, the SCC dismissed an appeal brought by civil rights groups requesting the suspension of Québec’s ban on religious symbols pending judicial review. In Amselem,154 a group of Orthodox Jewish unit-owners conscientiously objected to contractual constraints and constructed succahs on their balconies as part of their celebration of the Jewish festival of Succot. The SCC ruled that the contract terms, together with the property rights and fire safety concerns of residents, would have to give way to the rights of a minority to publicly celebrate their religion in a religious festival, in the same way that Christians would do at Christmas. The right to manifest the identity and integrity of religious institutions, and their entitlement to State protection when doing so, was reiterated by the SCC in Loyola High School v. Quebec (Attorney General).155 However, where the right to so manifest conflicts with a legal duty of universal application then a conscientious objection to compliance with that duty, on grounds of religious belief—as in Bhinder156 when a Sikh was dismissed for refusing to wear a hard hat on a building site—may not be considered to be a valid exercise of the right to manifest (see, further, below). Again, in R. v. N.S.,157 the SCC upheld the right of a judge to require a Muslim woman to remove her niqab when giving evidence as the judge was entitled if not obliged to view the demeanour of all witnesses in order to assess their credibility. The Multani case158 concerned the conscientious objection of Sikh parents to the religious annonymity of the dress code favoured by their son’s school, which in turn objected—if not conscientiously—to his insistence on wearing a kirpan. The SCC ruled that “a total prohibition against wearing a kirpan (a ceremonial dagger) to school undermines the value of the religious symbol and sends students the message that some religious practices do not merit the same protection as others”.159 The SCC

153

2019 QCCA 2145. Syndicat Northcrest v. Amselem, [2004] 2 SCR 551. 155 2015 SCC 12. 156 Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder (1985), 7 C.H.R.R. D/3093 (S.C.C.). 157 (2012) 3 SCR 726. 158 Multani v. Commission scolaire Marguerite-Bourgeoys, op cit. 159 Ibid at 297. 154

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considered that the freedom of a Sikh boy to carry his kirpan, which was viewed by him as part of his Sikh identity, outweighed reasons (e.g., alleged safety concerns) to prohibit him from doing so. This exercise in balancing the unintentional adverse effects of a neutral rule on a religious/cultural minority, against a general concern to promote the public benefit, can be seen in a considerable number and variety of cases.160

7.7.3.2

Indigenous Beliefs

“Religion is a matter of faith intermingled with culture”, as McLachlin J noted in the Hutterite case161 and for the Indigenous people this largely became a matter of their traditional beliefs succumbing to, or fusing with, those of Christianity. The Canadian Human Rights Act, s.35 of the Constitution Act, s.25 of the Charter of Rights and Freedoms, and the United Nations Declaration of the Rights of Indigenous Peoples all include legal protections for the fundamental right of these communities to freely practice their religious and spiritual traditions, and to be treated equally and with dignity.162 The SCC has a well-established track record of according locus standi to the beliefs of Indigenous people.163 One such positive ruling was the decision Tsilhqot'in Nation v. British Columbia164 when both the federal and provincial governments failed to establish clear felling forestry rights in respect of land where a First Nations tribe had lived and worshipped for centuries. The court found that the tribe had acquired Aboriginal title by virtue of historical occupation, and that any intervention affecting it could only be with tribal consent or without such consent in restricted circumstances. This was a significant SCC determination: it recognised the beliefs of Indigenous people; it established the status of those beliefs as equivalent to other religions; and it affirmed the right of their belief based conscientious objections to State protection. Again, in Ktunaxa Nation,165 the SCC seemed to acknowledge the right of First Nations to conscientiously object to State restrictions on their freedom to manifest beliefs. The court then found that “where State conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom” and that because “in many Indigenous religions . . . land itself 160

See, for example: Grant v. Canada, [1996] 1 SCR vii, 130 DLR (4th) vii and Peel Board of Education v. Pandori (1991) 3 OR (3D) 531 (Div Ct). 161 Alberta v. Hutterian Brethren of Wilson Colony, op cit, at para. 89. 162 Kelly v. British Columbia (Public Safety and Solicitor General) (No.3), 2011 BCHRT 183 (CanLII). 163 Kruger and Manuel v. The Queen (1977), [1978] 1 SCR 104, 75 DLR (3d) 434; Simon v. The Queen, (1985), [1985] 2 SCR 387, 62 N.R.366; Arthur Dick v. The Queen (1985), [1985] 2 SCR 309, 62 N.R. 1, [1986] 1 W.W.R.1; and Jack and Charlie v. The Queen (1985), [1985] 2 SCR 332, 62 N.R. 14, [1986] 1 W.W.R.21. 164 2014 SCC 44. See, also, Delgamuukw v. British Columbia. [1997] 3 SCR 1010. 165 Ktunaxa Nation v. British Columbia, [2017] SCC 54, at para. 71.

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can be sacred . . . State action . . .(may then) interfere with the ability to act in accordance with religious beliefs and practices”. However, although the SCC found that the appellants belief in the Grizzly Bear Spirit was sincere, and equally that they sincerely believed the proposed development would drive that Spirit away (matters of religious belief falling to be determined by Church not State), the court found that the Ktunaxa’s claim was not protected by s.2(a) of the Charter because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs was infringed by the Ministerial approval of the proposed development project.166 There is a strong similarity between this scenario and that of Indigenous people in Australia.

Affirmative Action R v. Kapp167 is an interesting case which concerned the protests of a commercial fishery to the right of three aboriginal bands to fish exclusively in specific rivers for a specific 24 hour period. Their protest took the form of challenging the aboriginal right by staging a ‘fish in’ on the rivers during the 24 hour period which resulted in the aboriginal bands taking legal action for breach of their right. The commercial fishery responded by claiming that, per se, a right reserved exclusively to aboriginals clearly violated equality laws and discriminated against the fishery. As in the earlier Athabasca case,168 the SCC took the view that ameliorative programs targeting a disadvantaged group do not constitute discrimination. It found that the right was protected by s.15(2) as a program that “has as its object the amelioration of conditions of disadvantaged individuals or groups”. It duly held that therefore the program did not violate the equality guarantee of s.15 of the Charter. Arguably, if it is accepted that traditional aboriginal rights—in relation to fishing, hunting, logging etc169—are now legally recognised and protected not just because these rights provide their rightful owners with commercial opportunities that may ameliorate social disadvantage (justification in itself, certainly) but also because they represent significant aspects of aboriginal culture and identity, then R v. Kapp could be interpreted in terms of an aboriginal conscientious objection to the undermining of their culture/beliefs.

166

Ibid at para. 8. 2008 SCC 41. 168 Athabasca Tribal Council v. Amoco Canada Petroleum Co., [1981] 1 S.C.R. 699. 169 See, for example, R. v. Sparrow, [1990] 1 S.C.R. 1075. 167

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Conscientious Objection and Equality: Contemporary Caselaw

The Charter, s.15(1), states that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . .”. As the SCC stated in Andrews “the promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration”.170 The tension between this equality right and the right to manifest religion/belief/conscience naturally generates conscientious objections when issues arise that bring the two into conflict.

7.8.1

Public Health

Notwithstanding the above proclamations of equality, public healthcare access varies across the provinces: between urban and rural settings; and depending on the procedure. However, public health facilities are broadly defined. If, for example, a hospital has been established by statute and is publicly funded then it is a public health facility and its medical staff are subject to public health rules and regulations.171 Barriers to access include geography, funding and the conscience of healthcare professionals. A Canadian public health care professional, unlike their U.S. counterpart, does not have a legal right—short of the reasonable accommodation rule—to refuse to provide services on grounds of religion, belief or conscience. Moreover, as the SCC ruled in Ciarlariello v. Schacter,172 patients have a “clear legal right” to autonomy and self-determination in health care. Nonetheless the practice of medical practitioners being exempted from providing health care services, on grounds of conscientious objection, is approved by professional codes of practice and is well established in public health care across Canada. The SCC has expressed concern regarding the possibility of situations arising where interests of physicians and patients could be in conflict and has called for reconciliation.173 The Canadian Medical Association Code of Ethics and Professionalism,174 while clearly acknowledging and placing importance upon the role of each professional’s conscience, does not provide explicit advice regarding conscientious objection. It states:

170

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, per McIntyre, J., at p. 171. Eldridge v. British Columbia (Attorney-General) [1997] 3 SCR 624. 172 [1993] 2 SCR 119. 173 Carter v. Canada (Attorney General), 2015 SCC 5 at para. 132, [2015] 1 SCR 331. 174 See, further, at: https://policybase.cma.ca/documents/policypdf/PD19-03.pdf. 171

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Section C, Professional Responsibilities: 3. Act according to your conscience and respect differences of conscience among your colleagues; however, meet your duty of non-abandonment to the patient by always acknowledging and responding to the patient’s medical concerns and requests whatever your moral commitments may be. 4. Inform the patient when your moral commitments may influence your recommendation concerning provision of, or practice of any medical procedure or intervention as it pertains to the patient’s needs or requests.

This guidance was examined by the court in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario,175 and found to be in breach of the complainants’ right to “freedom of conscience and religion” as protected under s.2(a) of the Charter. The court found that a proportionate balance must be maintained between professionals’ rights of conscientious objection to conduct procedures and patients’ rights of timely access to appropriate health services. It ruled that doctors must provide an ‘effective referral’ where they are unwilling to provide care on moral or religious grounds.

7.8.1.1

Abortion, Contraception IVF and Surrogacy

The judiciary in the Christian Medical case, at first instance and on appeal, approved the general principle that the medical practitioners “[a]s members of a regulated and publicly-funded profession, they [the complainants] are subject to requirements that focus on the public interest, rather than their own interests. In fact, the fiduciary nature of the physician-patient relationship requires physicians to act at all times in their patients’ best interests, and to avoid conflicts between their own interests and their patients’ interests”.176 This ruling states a governing principle which would seem to sharply distance the Canadian approach to conscientious objection in a public health context from that currently being applied through religious liberty laws in the U.S.

Abortion In Canada, unlike other Part III jurisdictions, abortion is a public health service available at any stage of pregnancy and not subject to any specific legislation. The conscientious objection of medical staff is provided for in the ‘duty to accommodate’ rule. This was found not to have been applied by the employer in Moore v. British Columbia (Ministry of Social Services)177 which concerned a Catholic public service employee who, having objected to abortion and on refusing 175

2019 ONCA 393. Ibid, at para. 187. 177 [1992] B.C.C.H.R.D. No. 15. 176

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to work with a client who sought a termination, was disciplined and eventually fired. The HR Tribunal held that because the employer knew of her religiously based objection they had an obligation to accommodate the employee by transferring the client to other employees. By way of contrast, in C. v. A.178 the HR Tribunal acknowledged that a family medical clinic had accommodated a Christian employee’s conscientious objection by not requiring her to refer patients for abortions. Abortion referrals were processed by other individuals without compromising patient care. In CV v. Mount Sinai Hospital179 a woman pregnant with twins from in vitro fertilization wanted a single child and sought to abort one of the foetuses. The hospital—which had a distinct religious ethos—refused because, as it explained, the ‘conscience of the clinicians’ at the hospital would not let them perform the procedure.180 The claimant underwent the procedure elsewhere and later sued under Ontario’s Human Rights Code, alleging discrimination based on her sex and family status. The Tribunal dismissed the claim with the explanation that while the hospital’s refusal to abort one of the foetuses implicated the claimant’s sex and pregnancy, the hospital did not make the refusal because of her sex or pregnancy. The decision illustrates the fine line between conscientious objection and discrimination, shows how easily it can become blurred and reveals the important role to be played by proportionality in guiding those involved. The Canadian Medical Association (CMA) policy on Induced Abortion exempts doctors from both providing abortions and from referring patients. The CMA’s ethics director has subsequently published a “clarification” of the CMA position, stating that doctors should indicate to patients that “because of your moral beliefs, you will not initiate a referral to another physician who is willing to provide this service (unless there is an emergency)”. More recently, in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario181 the Ontario Court of Appeal unanimously upheld the lower court ruling that the ‘Policies of the College’ requiring physicians who invoke rights of conscientious objection in order not to participate in procedures that violate their religious beliefs must provide a patient seeking such a procedure with an “effective referral”. The relevant procedures included abortion, contraception (including emergency contraception, tubal ligation and vasectomy), infertility treatment for heterosexual and homosexual patients, prescription of erectile dysfunction medication, gender re-assignment surgery and medical assistance in dying. Consequently, only in Ontario is professional exemption on grounds of conscientious objection accompanied by a requirement to ensure an “effective referral” to an alternative provider or agency.

178

(2002), 43 C.H.R.R. D/395, 2992 BCHRT 23. 2016 HRTO 941. 180 See, further, at: https://nationalpost.com/health/mount-sinai-hospitals-refusal-to-eliminate-onefetus-from-twin-pregnancy-triggers-human-rights-battle-in-toronto. 181 2019 ONCA 393. 179

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Contraception The conscientious objection of medical practitioners to provision of abortion and contraceptive services arouses much contention in Canada. As has been pointed out, such refusal can target a range of services:182 Depending on the kind of professional involved (doctor, nurse or pharmacist), conscientious refusal that concerns abortion or contraception can be a refusal to do the following: perform an abortion; prescribe or dispense contraception, emergency or otherwise; prescribe or dispense contraception to a particular group (e.g., unmarried women); refer a patient to another professional for abortion or contraceptive services; provide information on abortion or contraception; train to perform abortions and related procedures; stock contraception (i.e., in one’s pharmacy); or simply participate in any way in the provision of these services.

Although contentious, issues when they arise would seem to be resolved without recourse to the courts: there is a marked absence of judgments on conscientious objection in this context.

IVF and Surrogacy Altruistic surrogacy is legal in Canada, has developed a significant international market, and is regulated under the Assisted Human Reproduction Act 2004. This, the governing legislation for the past 16 years, has been revised with new regulations introduced in 2020 to clarify permissible financial arrangements between the parties.

SOGI Related Health Issues Gender identity in Canada is a matter to be determined by each individual, accompanied by the legal right to self-declare: whether male or female, non-binary, trans or Two Spirit; gender reassignment surgery is unnecessary. While there are cases illustrative of professional or agency objections to engaging with SOGI related public health issues,183 not much is indicative of objections that could be strictly interpreted as conscientious. One such might be K. (N.) v. H. (A.)184 which concerned a parental dispute as to whether or not JK, their 11 year old child, should engage in gender conversion therapy: the mother, a prominent transgender advocate, promoted the therapy; the father’s opposition, being on the basis of a belief that the mother was politically motivated, might be construed as a conscientious objection. The dispute was ultimately resolved by Skolrood J ruling that “these 182 See, for example, FitzGerald and McLeod (2014), p. 3. See, further: https://ir.lib.uwo.ca/ philosophypub/474. 183 See, for example: Kavanagh v. Canada (Attorney General), 2001-08-31, D.T. 11/01; Waters v. BC Medical Services Plan, 2003 BCHRT 13 (CanLII); and Hogan v. Ontario (Minister of Health and Long-Term Care), 2006 HRTO 32 (CanLII). 184 2016 BCSC 744.

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issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so”.185

7.8.1.2

Medical Practitioners and Assisted Death

Not to cause harm is a basic tenet of the medical profession. For practitioners this gives rise to an acute dilemma when they are faced with the possibility of being complicit in causing or hastening the death of a patient.

Suicide Suicide, legal since 1972, has for some years been a leading cause of Canadian deaths.

Refusing Medical Treatment The SCC has ruled that a person over the age of majority and able to give or withhold informed consent “has the right to refuse treatment, even if that treatment is, from a medical perspective, in his or her best interest . . . the right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy”.186 However, any such refusal—even if on the grounds of conscientious objection—is not a right exercisable by a parent on behalf of their child, as was demonstrated in B. (R.) v. Children’s Aid Society of Metropolitan Toronto187 when, in keeping with similar rulings in many other countries, Jehovah’s Witness parents’ refusal of a blood transfusion for their child was overruled by the court. Accepting such a refusal, difficult for all medical staff, is made more so for those who for reasons of religion, belief or conscience—on top of professional ethics— find it impossible to be a silent witness to suffering they know they are in a position to at least ameliorate. For such persons the option of refusing to continue bearing professional responsibility, on grounds of conscientious objection, is permissible.

Medically Assisted Death In Carter v. Canada,188 the SCC found that ss.241 and 14 of the Criminal Code— prohibiting physician assisted suicide, or euthanasia—violated s.7 of the Charter,

185

Ibid, at para. 40. Starson v. Swayze, 2003 SCC 32. 187 (19920, 10 O.R. (4d) 321 Ontario Court of Appeal. 188 2015 SCC 5. 186

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and ruled that mentally competent adults, suffering intolerably and enduringly, had a right to a medically assisted death. In mid-June 2016 Parliament passed Bill C-14 which narrowed the scope of the Carter decision by declaring that to qualify for a medically assisted death a person must be in an advanced state of irreversible decline and their natural death must be ‘reasonably foreseeable’; notably, this legislation failed to explicitly address the issue of exemption for medical practitioners.189 By 2020 every province and territory had passed a policy or law to permit medical assistance to the dying (MAiD) and all allow professional exemption on grounds of conscientious objection. The CMA’s Medical Assistance in Dying policy,190 which supports “conscientious objection” to MAiD, does not require an effective referral. It states: Physicians who choose not to provide or otherwise participate in assistance in dying are: not required to provide it, or to otherwise participate in it, or to refer the patient to a physician or a medical administrator who will provide assistance in dying to the patient; but are still required to fulfill their duty of non-abandonment by responding to a patient’s request for assistance in dying.

However, at least three provinces require direct referrals to providers or agencies who can provide MAiD.

7.8.1.3

Blood and Organ Donations

This area of public health is governed federally by the Safety of Human Cells, Tissues and Organs for Transplantation Regulations (Regulations) pursuant to the Food and Drugs Act 1985. It is a context in which conscientious objection by medical practitioners is sometimes perceived as counter-intuitive as, unlike assisted dying and abortion, organ donation/transplant and blood transfusions can, as intended, save lives. The Canadian ‘Ethics Guide for Donation Physicians’ specifically recognises the possibility of medical staff having conscientious objections to engaging with organ donation and/or transplant procedures.191 Indeed, it recognises that whole hospitals may conscientiously object to such procedures.192 It advises that any medical practitioner availing of exemption on grounds of conscientious objection must ensure alternative access to donation services such that family and patient wishes are not compromised. It adds that where hospitals conscientiously object, this may necessitate not only transfer of care to another physician but the potential transfer of the patient to another facility. In the first full year of the new law there were 1015 medically assisted deaths, rising to 4467 in 2018 and to 5631 in 2019. 190 See, further, at: https://policybase.cma.ca/en/viewer?file¼%2fdocuments%2fPolicyPDF%2 fPD17-03.pdf#search¼medical%20assistance%20in%20dying&phrase¼false. 191 Shemie et al. (2017), at: https://pubmed.ncbi.nlm.nih.gov/28437370/. 192 See, further, Shaw et al. (2018), pp. 43–47. 189

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Vaccination

Immunisation rates are falling in Canada and as a result the prevalence of diseases such as measles is rising. It has been estimated that one tenth of Canadian children are now unvaccinated, meaning about 750,000 have no immunity against diphtheria, whooping cough, tetanus and measles.193 Vaccination is not mandatory but an immunisation certificate has long been necessary for school admittance in three provinces: Ontario and New Brunswick require proof for diphtheria, tetanus, polio, measles, mumps, and rubella immunization; while Manitoba requires proof only of measles vaccination. In each of these provinces the relevant legislation contains an exemption clause allowing parents to request that their child be excused from the vaccination requirement on medical or religious grounds, or simply on grounds of conscience. New Brunswick, however, following a serious outbreak of measles is now planning on ending the religious and philosophical exemptions and making vaccinations mandatory for all staff in the public school system.194 Evidence is beginning to emerge of health authorities being prepared to make child vaccinations mandatory by removing the parental right to exemption on grounds of conscientious objection.195

Law, Government and Vaccination in the Covid-19 Pandemic It would seem probable that the Charter freedoms, as guaranteed in s.7 and also in s.2 (a), prevent the imposition of restrictions such as a mandatory vaccination law on individual autonomy. However, every province and territory has legislation in place to introduce such a law in times of a public health emergency. Currently each province and territory has much the same occupational health and safety legislation requiring employers to take the necessary precautions to provide a safe work environment for their employees. Arguably, this gives employers the authority and duty to mandate vaccination for their employees where not to do so would expose them and others to risk to health from an unhealthy workplace. Employees have a reciprocal right under the Charter to claim accommodation for their needs unless this imposes undue hardship on their employer. Such a threshold would conceivably require the employer to provide health and safety measures such as face masks and social distancing but may also stretch to having work colleagues vaccinated. A combination of the “undue hardship” threshold and employer health and safety responsibilities will vary in their impact in accordance with type of 193

See, further, at: https://nationalpost.com/news/canada/they-cant-do-it-themselves-if-parentsrefuse-to-vaccinate-should-the-state-do-it-for-them. 194 See, further, at: https://www.theglobeandmail.com/canada/article-new-brunswick-to-ban-nonmedical-exemptions-to-school-based/. 195 See, Board of Health for the City of Toronto, ‘Moving to Acceptance: Toronto Public Health’s Strategy to Address Vaccine Hesitancy’, (September 23, 2019), at: http://app.toronto.ca/tmmis/ viewAgendaItemHistory.do?item¼2019.HL9.2#.

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workplace with some, such as hospitals and nursing homes, carrying such a high level of risk to staff and services users as to more readily justify employer mandated vaccination. The risk assessment of a vaccine refusal—whether on grounds of conscientious objection or otherwise—will similarly vary in accordance with workplace setting and justify disciplinary action by employers correlated to the level of risk the refusal presents to others.

7.8.2

Social Care Services

Community based social care provision for children, the elderly, the physically and mentally impaired and those otherwise socially disadvantaged is an important aspect of Canadian social policy.

7.8.2.1

Adoption and Foster Care

Tensions between traditional religious values and the now legally established SOGI related social mores, give rise to difficulties in a Canadian child care context as they do elsewhere. However, there is no equivalent to the insitutional problems resulting from the conscientious objections and large scale withdrawal from service provision by religious organisations that have been a feature of that tension in the U.S. and the U.K.

Service Refusal There have been two recent cases that illustrate the problems facing religious adoption and foster care applicants wishing to provide family care for children in need. The C.D. and N.D.196 case concerned a married evangelical Christian couple, with biblical views on marriage and sexuality, whose adoption application was rejected by the Alberta Child and Family Services in 2017 because of those views, despite a warm recommendation for approval from Catholic Social Services the assessing agency. The couple’s conscientious objection to being rejected because of their beliefs was upheld on judicial review, causing the Child and Family Services agency to reverse its decision. This was followed almost immediately by the so-called ‘Easter Bunny case’197 involving a Christian foster care couple and children placed in their care who were removed a couple of months later because they rejected the Children’s Aid Society of Hamilton instructions regarding the Easter Bunny. The monitoring social worker, having concerns regarding the possibly

196 197

C.D. and N.D. v. Alberta Child and Family Services, (Q.B. AL, filed 11/1/2017). Derek and Frances Baars v. Hamilton Children’s Aid Society, 2018 ONSC 1487.

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restrictive effect of the couples religious values, had advised them that it was part of their duty as foster parents to teach the girls about the Easter Bunny, because she considered this to be part of Canadian culture. The couple responded with an assurance that while they intended to hide chocolate eggs and have the girls find them at Easter, and play other games, they were not prepared to make any reference to the girls about such a mythical entity as Easter Bunny, unless the girls made specific enquiries. The children were promptly removed from their care and the couple’s status as foster parents was cancelled. Subsequently, the couple’s conscientious objection to being so treated because of their beliefs was upheld by the Ontario Supreme Court which found that the agency had violated their Charter right to freedoms of conscience, religion and expression. These cases demonstrate that the conscientious objections of Canadian adopters and foster carers, to being ill treated by agencies because of their traditional Christian beliefs, will find Charter protection in the courts.

7.8.2.2

Social Care Facilities and Benefits

The Canada Summer Jobs program, which provides funding to help small businesses and charities create summer jobs for students, has caused some dissension by introducing criteria that require Canadian employers to “attest” that both their jobs and their “core mandate” “respect” certain “values” identified by the federal government, including access to abortion. This penalizes certain groups because of their religious beliefs and denies them access to benefits enjoyed by others, which—like Bill 21 in Québec—is a likely target for conscientious objections. The above-mentioned case of B. (R.) v. Children’s Aid Society of Metropolitan Toronto198 is instructive in relation to conscientious objection because, as the court put it:199 The liberty protected by s.7 of the Charter does not mean unconstrained freedom. Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good.

The SCC then dismissed the conscientious objection of parents, on religious grounds, to their child receiving a blood transfusion.

7.8.2.3

Public Officials: Marriage Registrars Etc

As State representatives, a heavy onus falls on public officials to be seen to be scrupulously giving effect to legislative provisions, as currently demonstrated most graphically in relation to Québec’s Bill 21. Since it took effect in 2019, this

198 199

[1995] 1 S.C.R. Ibid, per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ at p. 317.

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legislation has generated a considerable volume of conscientious objections from Muslim and other public officials (e.g. bus drivers) who maintain that their religious beliefs require the wearing of religious clothing in public.

Marriage Registrars The Civil Marriage Act 2005, a federal statute extending marriage to same sex couples, contained an exemption clause excusing Registrars—or marriage commissioners as they are known in Canada—from officiating at ceremonies in respect of such couples on grounds of conscientious objection. The ensuing corresponding provincial legislation generally included such exemption clauses but Saskatchewan was one of three that did not. Consequently, in J. (M.) v. Nichols,200 a civil marriage commissioner in that province who refused marry a same sex couple on the grounds that doing so would conflict with his religious beliefs was found to have discriminated against them, a decision upheld on appeal. The court commented that:201 a public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the State. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position.

Subsequently, in Reference Re. Constitutional Act, 1978,202 the Saskatchewan Court of Appeal rejected amendments to the province’s Marriage Act that would have allowed civil marriage commissioners to refuse to perform same-sex marriages on the grounds that such a law would be unconstitutional. The court found that such an amendment would: discriminate against same sex couples; cause psychological harm to the couple, their families and to various members of the public; and cause marriage commissioners to violate a fundamental principle of governance, namely that government services be provided in an impartial and non-discriminatory manner. It ruled the proposed amendment to be unconstitutional as it would violate s.15 of the Charter. This reasoning was followed in Dichmont v. Newfoundland and Labrador203 when the court held that civil marriage commissioners, unlike religious officials, perform a public service and could not discriminate in the provision of that service, regardless of their private religious beliefs.204 Most recently the Kisilowsky case205 concerned a Manitoba marriage commissioner, stripped of his license to perform marriages by Vital Statistics, because of his conscientious objection on religious grounds to performing same-sex ceremonies. Overturning the decisions of Vital Statistics and the court of first instance, the Court of Appeal ruled that: only 200

2009 SKQB 299. Ibid, at para. 74. 202 2011 SKCA 3. 203 2015 NLTD(G) 14. 204 Ibid, at paras. 88–89. 205 Kisilowsky v. Manitoba, 2018 MBCA 10. 201

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religious officials and not civil marriage commissioners could refuse to perform same-sex marriage ceremonies on religious grounds; but that requiring marriage commissioners to marry all couples legally capable of getting married infringed their s.2(a) Charter rights in a way that was more than trivial or insubstantial. These decision, admittedly of lower courts, would seem to be important. Like an equivalent UK ruling, they draw attention to the inherent contradiction of a government employee opting not to give effect to government legislation, instead seeking exemption from duties that are central to their terms of employment, an exemption that would breach their contract, the legislative provisions governing their duties and their obligations as a representative of government. Moreover, and not least, such an exemption sends a message that “discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination”.206

Other Public Officials The 1992 case of Moore v. British Columbia (Ministry of Social Services)207 concerned a public official who processed applications by citizens for financial assistance from the State. She conscientiously objected to processing applications relating to abortions and had advised her supervisor accordingly. Ultimately she successfully challenged the decision of her employer (the province of British Columbia) to dismiss her on account of her refusal to process such an application. The decision-maker concluded that the employer had discriminated against the employee on the basis of her religion (Catholicism) and that the employer failed to demonstrate that accommodating the employee (by reassigning abortion files to willing employees) would entail undue hardship. This case can be differentiated from that concerning the above marriage commissioner in that the duties in respect of which Moore had sought exemption, constituting only a small aspect of both her contractual obligations and her role as a public official, could have been readily accommodated by her supervisor who had had advance notice of the conscience issue.

7.8.3

Public Education

The public education system raises questions regarding Canada’s adherence to the principle of State neutrality. Catholic and Protestant schools in four provinces, Alberta, Saskatchewan, Ontario and Québec (making up roughly three-quarters of Canada’s population) retain the federal, constitutionally protected right to public

206 207

See, Vriend v. Alberta, [1998] 1 SCR 493 at para 100. See further at: https://www.consciencelaws.org/archive/documents/1992-moore-chrr.pdf.

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funding they gained when those provinces joined the federation. Other religious denominations do not receive constitutional or federal recognition of an entitlement to equivalent funding.

7.8.3.1

Schools, Teachers and Parents

Undeniably, the Constitution Act 1867, s.93, extends protection to denominational schools, permits partisan State funding of certain denominational schools but not others, and has often given rise to cases featuring conscientious objections to such religiously biased preferential treatment.208 This archaic anomaly was judicially acknowledged in Adler v. Ontario209 when Iacobucci J ruled that government funding of both Roman Catholic and public schools, but not private religious schools, was entitled to special protection210 under that constitutional provision.211 It prompted the UNHRC in 1999 to declare that Ontario's policy of fully funding Roman Catholic schools while denying full funding to other religious schools was discriminatory, and advised that if the State “chooses to provide public funding to religious schools, it should make this funding available without discrimination”.

Religion Specific Clothing: Teachers In most of Canada the principle of State neutrality applies: the teacher in a public school as a State representative of a multicultural society is free to express their religious beliefs—short of proselytism and safety concerns—by wearing religion specific clothing. However, in Québec, from the beginning of the 2019 academic year, Bill 21 applies to prohibit teachers from wearing religious symbols—such as headscarves, Sikh turbans, Christian crosses or Jewish skullcaps—while in school, with exceptions for new employees and for those who change jobs. In Québec, as in France, this ban particularly affects Muslim women who feel that wearing the hijab or niqab or burka is an essential means of expressing their religious identity and conscientious objection litigation may well ensue from some claiming that their Charter right to religious freedom is being violated.

208

See, for example: Tiny Township Catholic Separate Schools Trustees v. The Queen (1928) A. C. 363; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 SCR 575; Reference Re Bill 30 [1987] 1 SCR 1148; Adler v. Ontario [1996] SCR 609; and Waldman v. Canada, Comm No 694/1996. 209 [1996] SCR 609. 210 Section 93 of the Constitution Act 1867 was deemed by Iacobucci J to be “immune from Charter scrutiny”. 211 30 & 31 Victoria, c. 3. Richard Moon adds: “Re Bill 30 is probably the more important judgment on the issue of separate school funding and the non-funding of other religious schools”.

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Religion Specific Clothing: Pupils Again, while pupils wearing religion specific clothing is generally unproblematic in the rest of Canada, the constraints introduced in Québec would seem likely to generate parental conscientious objections. Bill 21 arguably challenges State neutrality, Charter principles and international human rights and would seem to fly in the face of the SCC assertion that “a secular State respects religious differences, it does not seek to extinguish them”.212

Prayers, Symbols and Religious Ceremonies Etc A stream of conscientious objection cases have established that public institutions cannot engage in religious indoctrination by compelling participation in prayers or religious instruction dominated by the perspective of a single denomination.213 Cases such as Zylberberg v. Sudbury Board of Education (Director)214 and Russow v. BC (AG)215 have emphasised that the compulsory recitation of the Lord’s Prayer in public schools—to the exclusion of prayers from any other religion—constitutes an impermissible infringement of religious freedom. In Erazo v. Dufferin-Peel Catholic District School Board216 the court held that non-Catholic children could be exempted from retreats and Catholic mass in a State funded Catholic school as “no Catholic school system that is required by law to admit non-Catholic students should have the right to require such participation from their students”.217 That the opposite is also true was demonstrated in Webber218 when the court found that a private school had discriminated against two Muslim students by refusing to accommodate their request to pray on campus during school hours and so also in the abovementioned Multani case219 when the SCC upheld the conscientious objection of a

212 213

Loyola High School v. Québec (Attorney General), 2015 SCC 12 at para. 43. Canadian Civil Liberties Assn. v. Ontario (Minister of Education), [1990] O.J. No. 104, 65 D.L.

R. (4th) 1 (C.A.); Russow v. British Columbia (Attorney-General), [1989] B.C.J. No. 611, 62 D.L. R. (4th) 98 (B.C.); Manitoba Assn. for Rights and Liberties Inc. v. Manitoba, [1992] M.J. No. 391, 94. D.L.R. (4th) 678 (Q.B.); Zylberberg v. Sudbury Board of Education (Director), [1988] O.J. No. 1488, 52 D.L.R. (4th) 577 (C.A.). 214 Ibid. 215 (1989), 35 B.C.L.R. (2d) 29. Also, see, Freitag v. Penetanguishene (Town) (1999), 47 O.R. (3d) 301. 216 2014 ONSC 2072. See, also, Sorgini v. Simcoe Muskoka Catholic District School Board, 2017 HRTO 471. 217 Erazo, op cit, at para. 27. 218 Webber Academy Foundation v. Alberta (Human Rights Commission) [2016] ABQB 442. 219 Multani v. Commission scolaire Marguerite-Bourgeoys (2006) 1 SCR 256 (SCC).

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Sikh parent to the refusal of school authorities to allow his son to wear his kirpan on school premises.

SOGI Related Issues The Hall220 case concerned a Roman Catholic school board that had refused permission for a same-sex couple to attend a school graduation dance on the grounds that homosexuality is incompatible with Roman Catholic teaching. The Board— perhaps voicing its conscientious objection to conduct perceived as flagrantly violating the religious beliefs represented by the school—argued that any State interference with that decision would amount to denying the school its religious freedom. MacKinnon J, noting that “the Board is, in law, a religiously oriented State actor”,221 issued an interlocutory order requiring the school to admit the couple. His reasoning would seem to indicate that while the Board’s conscientious objection was reasonable, given the beliefs it was required to uphold, as the school was a government funded entity and a constituent part of the public education system, that objection could not prevail against the universally applicable equality laws. Arguably, a decision that sits uncomfortably alongside the rationale of the Loyola ruling issued a decade later.

7.8.3.2

Educational Content

All Part III jurisdictions are experiencing varying levels of parental opposition to the inclusion of SOGI related material in school curriculum content. Currently, the ‘SOGI 1,2,3 programme’—a SOGI specific resource for teachers designed to promote inclusion and diversity—launched in Vancouver in 2018 and being gradually rolled out nationwide, is the subject of much conscientious objection from parents and some teachers—with religious or other beliefs—who resist what they view as a doctrinaire intrusion into the classroom.

SOGI Related Curriculum Content In Chamberlain222 the SCC considered the refusal of the Surrey School Board to approve three controversial books depicting same-sex parented families, which had been promoted as supplementary learning resources, as teaching aids in the family life education curriculum. The court found that “children cannot learn unless they are

220

Hall v. Durham Catholic School Board [2002] OJ No. 1803. Ibid at para. 57. 222 Chamberlain v. Surrey School Board District 36 (2002), 221 D.L.R. (4th) 156 (SCC) at para. 19. Also, see Hall v. Powers, 59 O.R. (3d) 423, [2002] O.J. No. 1803. 221

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exposed to views that differ from those they are taught at home” and held that Board members, by refusing to permit the use of such books, were imposing their own religious values and seeking to deny children an important learning opportunity. McLachlin CJ advised that the Board “cannot prefer the religious views of some people in its district to the views of other segments of the community”. In SL v. Commission scolaire des Chênes223 the SCC dismissed the conscientious objection of Catholic parents to the mandatory Program on Ethics and Religious Freedom (ERC) because they considered the content to be incompatible with their family beliefs. The court added that “the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society”. The Loyola case224 again concerned the ERC, to which the plaintiff school and parents conscientiously objected, and sought permission to teach it from a Catholic rather than a neutral perspective. Ultimately, the SCC unanimously found that the refusal to release Loyola in any way from the requirement of strict neutrality in the teaching of the ERC disproportionately interfered with the religious freedom of the Loyola community. It reasoned that “requiring Loyola’s teachers to take a neutral posture even about Catholicism means that State is telling them how to teach the very religion that animates Loyola’s identity” which amounts to “requiring a Catholic institution to speak about Catholicism in terms defined by the State rather than by its own understanding of Catholicism”.225 Unlike the SL case, in Loyola the SCC found that the conscientiously objecting school and parents were able to demonstrate State interference with the “observance of a religious practice” contrary to the State’s obligation to remain neutral.

7.8.3.3

Faith Schools

Roman Catholic schools are by definition faith schools but, rather than forming part of the private sector, they are a wholly incorporated and fully funded component of the public school system.226 This gives rise to protests from those parents whose children attend other faith schools that are denied equivalent State funding. In Loyola,227 the SCC was clear that such a school needed to be assured of State protection in order to safeguard “the liberty of the members of its community who have chosen to give effect to the collective dimension of their religious beliefs by

223

[2012] 1 SCR 235. Loyola High School v. Québec (Attorney General) 2015 SCC 12. 225 Ibid, at para. 63. 226 Matt Harrington adds: “Québec is a bit of an exception. Most of the province’s Catholic schools were assimilated into the public system and function as public schools with religious names. However, the identifiable Catholic schools remain (Loyola, Marymount, Villa Maria, etc). These remain separate, private Catholic schools, but they still receive a large public subsidy” (note to author, 06.08.2018). 227 Loyola, op cit. 224

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participating in a denominational school.”228 This decision has clear implications for other religion specific schools.

7.8.3.4

Colleges/Universities

Scholarships, a form of affirmative action designed to confer preferential privileges upon a specified group of university applicants perceived as socially marginalised, are open to challenge from those who are correspondingly disadvantaged; such a challenge may fall within the definition of conscientious objection if brought by someone whose protest is rooted in religious or other form of belief. Canada Trust,229 the best known such case, restricted the scholarships to white, Protestant, British subjects and was found to be unlawful in 1990 by the Ontario Court of Appeal. Shortly afterwards, in Ramsden Estate,230 a testamentary gift to a university to fund scholarships for Protestant students was found to be valid, though administration of the gift would require cy-près adjustment.

LGBT Related Issues The issue of whether the Charter applies to universities, the subject of considerable judicial231 and academic232 deliberation, is of significance in the present context because of the resulting uncertainty as to whether university authorities are entitled to impose constraints on the freedom of expression by banning on-campus student protests such as those that accompany the many conscientious objections for and against LGBT related matters. The chain of Trinity Western233 cases are indicative of the problems involved in trying to reconcile rights to equality and to freedom of religion in a Canadian educational context. Trinity Western University (TWU)—an emanation of the Evangelical Free Church of Canada—chose to manifest its beliefs in a Community Standards Contract, stating its evangelical Christian values including abstinence from sex outside marriage and rejection of homosexual relationships, that all students were required to sign. In taking up that position TWU was simultaneously declaring its conscientious objection to SOGI related laws and values while thereby

228

Ibid, at para. 62. Canada Trust Co. v. Ontario Human Rights Commission (1990) 69 DLR (4th) 321. 230 (1996) 139 DLR (4th) 746. 231 See, for example, Pridgen v. University of Calgary, 2012 ABCA 139 and Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624. 232 See, for example, McKay-Pamos, L., ‘BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies to Universities’, at: ABlawg.ca. 233 Trinity Western University v. British Columbia College of Teachers (2001), 39 C.H.R.R. D/357. 2001 SCC 31. 229

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attracting a counter forcefield of similar objections from those—institutions and individuals—representing the same laws and values. Ultimately, perhaps, the SCC ruled in 2018 that the relevant regulatory body was justified in its refusal to accredit TWU. The SCC declared itself satisfied that the regulator’s decision represented a proportionate balance between the limitation on freedom of religion guaranteed by s.2(a) of the Charter and the statutory objectives pursued by the regulating authority and was therefore reasonable; any interference with religious freedom was minor and the regulators were entitled to take the view that the contract imposed “harm” on LGBTQ law students.234 It may be fair comment to note that the outcome of the TWU saga would seem to bear a strong affinity with that reached in Loyola: essentially, a triumph for the “islands of exclusivity” approach; where equality principles yield to traditional Christian religious beliefs; a contest which will always attract conscientious objectors but one in which in Canada they will be relatively powerless given the weight of constitutional authority defending the well established religious exemption.

Affirmative Action Provision is made for this form of State intervention in the Charter, s.15(2), which declares that application of the equality provision in s.15(1) is subject to the exception that it “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. Far from having a ‘hands off’ approach, the State is encouraged to promote religion, provided it does so in an evenhanded manner. As Dickson CJ put it in Big M:235 [t]he equality necessary to support religious freedom does not require identical treatment of all religions. In fact the interests of true equality may well require differentiation in treatment.

In University of Victoria v. British Columbia (A.G.)236 scholarships were used to positively discriminate in favour of Roman Catholics. This approach, acknowledges that groups, including those defined by their religion or beliefs, may have distinct needs that are most effectively and efficiently addressed by affirmative action though, admittedly, in this instance there is no obvious conscientious objection dimension.

234 Law Society of BC v. Trinity Western University, 2018 SCC 32 and Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. 235 R v. Big M Drug Mart, op cit, per Dickson J., at para. 124. 236 [2000] B.C.J. No. 520.

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Public Defence and Security

As in all Part III jurisdictions, the heightened security awareness in recent years has resulted in general constraints on the norms of civil society, some of which have had a particular impact upon Muslims.

7.8.4.1

Military Issues

Contemporary terms of enlistment and service in the Canadian armed forces are compliant with principles of equality and non-discrimination, including deference to SOGI related matters, and provide for conscientious objectors.

Service in the National Armed Forces Although not specifically mentioned in the National Defence Act, conscientious objection is protected under s.2(a) of the Charter, is a well established principle in Canadian law and is currently addressed in the Defence Administrative Orders and Directives.237 The latter defines it as ‘a sincerely held objection, on grounds of freedom of conscience or religion, to participation in: war or other armed conflict; or carrying and use of weapons as a requirement of service in the CAF’.

Transgender Military Personnel The Douglas case in 1992,238 which was settled out of court, ended the ban on LGBT personnel being allowed to serve in the Canadian armed forces.239 Since 2019 revised policies, being specifically inclusive of the gender diverse, would seem to have removed previous grounds for complaint.

7.8.4.2

Prisoners and Asylum Seekers

Both these categories of dependents have in common a total reliance upon State authority and the rules established by officials to recognise their particular vulnerabilities and provide for their safety.

237

See, DAOD 5516-2, Conscientious Objection at: https://www.canada.ca/en/departmentnational-defence/corporate/policies-standards/defence-administrative-orders-directives/5000series/5516/5516-2-conscientious-objection.html. 238 Douglas v. Can. (1992), 58 F.T.R. 147 (TD). 239 See, further, at: https://www.thecanadianencyclopedia.ca/en/article/canada-s-cold-war-purgeof-lgbtq-from-the-military.

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Prisoners In 2018 new policies were implemented to accommodate offenders with SOGI related identity issues. This was a consequence of recommendations made by the Canadian Human Rights Commission, the Correctional Service of Canada and the Prisoners Legal Services. The changes include: use of an offenders preferred name and pronouns; placing offenders in male or female accommodation based on selfidentifying gender; and endeavouring to ensure the privacy, dignity and safety of trans or gender-diverse offenders. As with the policy changes implemented by the armed forces, the new awareness, protocols and complaints procedures are likely to reduce opportunities for institutional discrimination. Maurice v. Canada (Attorney General)240 was the first reported case concerning a prisoner’s conscientious objection to prison conditions. The federal inmate was ultimately found entitled to receive a vegetarian diet on the basis of his beliefs. As the court explained:241 Vegetarianism is a dietary choice, which is founded in a belief that consumption of animal products is morally wrong. Motivation for practicing vegetarianism may vary, but, in my opinion, its underlying belief system may fall under an expression of ‘conscience’.

This clear judicial endorsement of vegetarianism as constituting a ‘matter of conscience’, and thus legitimately grounding a conscientious objection, was followed by a similar decision in the similar circumstances of R. v. Chan.242

Asylum Seekers In Zolfagharkhani v. Canada243 the claimant was an Iranian national/citizen who deserted after learning that Iran intended to use chemical weapons against Kurds in Iran, to which he conscientiously objected. The primary reason given for the initial rejection of his claim was that as he was to serve as a paramedic and would not be a combatant, he could not therefore claim that he would be placed in a position where he would have to use lethal force. However, on appeal, it was held that the prospect of punishment for refusing to participate in any role in the process of chemical warfare could be seen as amounting to a threat of persecution. It was decided that his refusal warranted protection, and his claim was approved. In all probability the Canadian court was swayed by the use of chemical weapons, something abhorrent and contrary to international law, and was prepared to stretch the bounds of exemption to include someone who would have functioned on the periphery of that process.

240

[2002] FCT 69. Ibid, at para. 9. 242 [2005] ABQB 615. 243 [1993] 3 F.C. 540 (CA). 241

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Fear of persecution on grounds of religion or SOGI related issues provides a good defence for asylum seekers threatened with repatriation and conscientious objection may well be invoked by those who believe the harm could be on the basis of their particular religious beliefs, or lack thereof. Where a country of origin is one of the 78 countries that currently criminalise same sex relationships then a reversal of conscientious objection could play a role in its refusal to accept the repatriation of an LGBT refugee. Since 1992–1993, Canada has been one of the first countries in the world to officially extend refugee protection to people facing persecution based on SOGI related issues.

7.8.5

Employment

The Canadian Human Rights Act 1985 lists seven prohibited types of discriminatory practice in relation to religion/beliefs in the workplace, including: refusing to employ or continue to employ someone, or treating them unfairly in the workplace; following policies or practices that deprive people of employment opportunities; paying men and women differently when they are doing work of the same value; retaliating against a person who has filed a complaint with the Commission or against someone who has filed a complaint for them; and harassment.

7.8.5.1

Right of Employers to Hire and Fire

Employers are expressly forbidden to discriminate towards their employees on the grounds of race, color, sex, religion, or national origin. Discrimination is interpreted to include harrassment, segregation and a failure to provide reasonable accommodation—including allowing for wearing religious apparel, prayer and flexibility for observance of religious ceremonies—in the workplace. Clearly, an employee’s conscientious objection grounded on religion/belief/conscience to working conditions that prevented, for example, their wearing of religious apparel, prayer, or their observance of religious holy days might well give rise to Title VII disputes.

Religious Organisations In addition to the right to discriminate when employing staff in accordance with the ‘bona fide occupational requirements’ (BFOR)244 rule, the Consitution Act 1867, s.93(1), protects denominational school privileges from the anti-discrimination strictures of modern human rights law and the Canadian Charter of Rights and

244

See, for example, Canada Trust Co. v. Ontario Human Rights Commission (1990) 69 DLR (4th) 321, per Tarnopolsky J at para. 98.

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Freedoms. Many provincial cases have concerned religious schools and the hiring and firing of teachers and other staff in accordance with religious rules that were found, as in the U.S., to be bona fide occupational requirements (BFOR). This was the case in Caldwell v. St. Thomas Aquinas High School,245 for example, where the dismissal of a teacher from a Catholic school was upheld as she had knowingly disobeyed fundamental Catholic rules including marrying a divorcee. A rationale subsequently echoed in Schroen v. Steinbach Bible College246 when the right of a Mennonite College to dismiss a secretary who had converted to become a Mormon was upheld. In Daly v. Ontario (Attorney General)247 the court acknowledged that restricting the recruitment of teachers to those of the Catholic faith was a valid consideration. These religious exemption cases represent the Canadian form of ‘institutionalised conscientious objection’. They all concern legal entities which, acting in accordance with their beliefs, were found to be exempt from employment law in their hiring and firing decisions relating to staff perceived as violating those beliefs.

Secular Organisations Prospective staff can find themselves excluded because of their conscientious objections at the recruitment stage. In Qureshi v. G4S Security Services,248 for example, an applicant was found to have been treated unjustly when the recruitment process was terminated on the employer learning of his need for time off for Friday prayers. In Widdis v. Desjardins Group,249 the Tribunal came to the same conclusion in relation to a Seventh Day Adventist applicant who, when she revealed her conscientious objection to working on Saturdays, as that day was her Sabbath, was not called for an additional interview. Similarly, in O’Malley v. Simpson Sears,250 an early SCC human rights case, when it was determined that a neutral rule of universal application251 requiring employees to work on Saturdays inadvertently discriminated against an employee because her religious beliefs as a Seventh-Day Adventist meant that she could not work on that day of the week. Subsequently a number of other cases also determined that not to accommodate the requirements of workers,

245

(1984), 6 C.H.R.R. D/2643. See, also, Sahota and Shergill v. Shri Gur Ravidass Sabha Temple, 2008 BCHRT 269 which concerned the exclusion of members of a caste from a religious organization representing a different caste. 246 (1999), 35 C.H.R.R. D/1 (Man. Bd. Adj.). 247 44 O.R. (3d) 349, [1999] O.J. No. 1383. 248 2009 HRTO 409 (CanLII). 249 2013 HRTO 1367. 250 [1985] 2 SCR 536. 251 See, also, British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999) 3 SCR 3 which concerned a woman firefighter found to have been discriminated against when dismissed for her inability to pass an aerobic test required by all firefighters.

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who conscientiously object to working on days of religious significance, is unlawful.252

SOGI Related Issues Heintz v. Christian Horizons,253 a landmark case, concerned a complaint of discrimination by a support worker employed by Christian Horizons, a faith based organization with traditional Christian values, who resigned after commencing a same-sex relationship as felt she could no longer honour her employer’s beliefs. She subsequently commenced proceedings alleging discrimination: giving rise, in effect, to a clash of what appear to be mutually opposing, genuine conscientious objections. Ultimately the court found for the employers and, in an important ruling for all religious organisations in Canada, declared that such organisations have an entitlement to exemption, from the law barring discriminatory hiring, “if they are primarily engaged in serving the interests of their religious community, where the restriction is reasonable and bona fide because of the nature of the employment”. This case can be readily distinguished from others involving the difficulties experienced by trans persons in the workplace as, unlike the others, there was a conspicuous religion/ belief/conscience dimension which grounded the parties submissions.254

7.8.5.2

The Workplace

The duty to accommodate—under ss.2 and 15 of the Canadian Human Rights Act— requires an employer to relieve an employee from service provision responsibilities on request, to facilitate an employee’s religious beliefs, or conscientious objection, if to do so would not cause the employer undue hardship. This duty has been recognised since at least the SCC ruling in Renaud255 which established that a Seventh Day Adventist school caretaker, whose religious beliefs prevented him from working from sundown Friday to sundown Saturday, could have been accommodated and that his employer and the union were liable for the failure to do so. The court noted that the de minimis rule—which applies to the duty to accommodate in the U.S.256—has no application in Canada. Drager v. I.A.M. and A.W.,257 similar to Renaud and typical of many such cases, again concerned a Seventh Day Adventist, who was dismissed when he

252 For example, Chambly (Commission scholaire régionale) v. Bergevin, [1994] 2 R.C.S. 525 and HT v. ES Holdings Inc. o/a Country Herbs, 2015 HRTO 1067. 253 2008 HRTO 22, 2010 ONSC 2105 (Div. Ct.). 254 Unlike, for example, Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601. 255 Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C.). 256 See, for example, Trans World Airlines, Inc v. Hardison (1977) 432 U.S. 63. 257 [1993] B.C.C.H.R.D. No. 42.

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conscientiously objected to working from sundown Friday to sundown Saturday. His employer, Dairyland Foods, and its union were found to have unlawfully discriminated against him. Again, in Derksen v. Myert Corps Inc. (No. 2),258 the BC Human Rights Tribunal ruled that the employer discriminated against Myert for failing to allow him to take a day off work to observe the new moon. His beliefs, as a member of the Christian Churches of God, required that he observed five holy days each year as well as lunar new moons every 29 days. The employer dismissed Myert during his probation period for taking unauthorized days off work in pursuance of his religious beliefs.

Undue Hardship It was the decision in the above mentioned O’Malley v. Simpson Sears that gave rise to the rule that service providers have a legal duty to accommodate people’s sincerely held beliefs and practices, to the point of undue hardship, where these have been adversely affected by a requirement, rule or standard. In Dairy Pool259 the SCC found that undue hardship to an employer could take the form of anticipated poor staff morale that would result from having to make the workplace adjustments necessary to accommodate an employee’s religious beliefs.

Sincerity of Belief As Iacobucci J stated in Amselm “this Court has indicated on several occasions that, if anything, a person must show ‘sincerity of belief’ and not that a particular belief is ‘valid’”.260 A conscientious objection claim must be exercised reasonably and will not confer an entitlement to exemption in circumstances where the religious factor is of relatively marginal relevance. One such case was Bhinder261 which concerned the sacking of a Sikh employee when he conscientiously objected to wearing a hard hat on a building site, claiming exemption from a universally applicable health and safety regulation on the grounds that his religion required him to wear a turban and no other head covering. The SCC found that the hard hat requirement was a bona fide occupational requirement, and the special circumstances of an individual should not be taken into account once it is established that an employment rule is such a requirement: there being no duty to accommodate where there is a bona fide

258

2004 BCHRT 60. Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 CHRR D/417 (SCC). 260 Syndicat Northcrest v. Amselem (2004) 2 SCR 551 at para 43 citing R. v. Videoflicks Ltd., (1984), 48 O.R. (2d) 395 (C.A.), at p. 735. 261 Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder (1985), 7 C.H.R.R. D/3093 (S.C.C.). 259

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occupational requirement. Again, in the above mentioned Hall (Litigation guardian of) v. Powers262 in which the SCC referred to the “serious issue to be tried—in the sense of a case with sufficient legal merit to justify the extraordinary intervention of this court in making the order sought” and went on to note that “the idea of equality speaks to the conscience of all humanity—the dignity and worth that is due each human being . . .”.263 The court concluded by denying the school board the protection of religious exemption and overuling its associated conscientious objection while upholding the equality rights of the litigant which it determined to be proportionately more important. Similarly, in Friesen,264 the sincerity of the proselytising plaintiff’s beliefs was not in doubt but his sacking, on refusing to stop preaching in the workplace, was justified—as was the rejection of his subsequent conscientious objection to being so treated—because, proportionately, his right to manifest his beliefs was outweighed by the unfair burden his conduct imposed upon his colleagues and on the efficiency of his employer’s business.

7.8.6

Commercial Services

The Canadian Human Rights Act, as amended by Bill C-16, lists seven types of discriminatory service provision that are prohibited in relation to religion/beliefs, including: denying goods, services, facilities or accommodation; providing goods, services, facilities or accommodation in a way that treats someone adversely and differently; retaliating against a person who has filed a complaint with the Commission or against someone who has filed a complaint for them; and harassment.

7.8.6.1

Goods and Services

In the early case of Noble et al. v. Alley,265 the SCC upheld the conscientious objection of Jewish man who challenged a restrictive covenant preventing property from being sold to anyone of “the Jewish, Hebrew, Semitic, Negro or coloured race or blood”. However, in terms of identity politics, it was R v. Big M Drug Mart Ltd,266 following hard on the heels of R v. Videoflicks Ltd,267 which was the landmark judgment in the politics surrounding religious identity in Canada. Both cases concerned conscientious objections to retail outlets opening for business on Sundays: in Videoflicks the objection was to the Retail Business Holidays Act which forced

262

(2002) 59 O.R. (3d) 423. Ibid, at paras 14 and 59 respectively. 264 Friesen v. Fisher Bay Seafood (2008), 65 C.H.R.R. D/400, 2009 BCHRT 1. 265 [1951] S.C.R. 64. 266 R v. Big M Drug Mart [1985] 1 SCR 295. 267 (1984) 48 OR (2d) 395, OJ No 3379 (CA). 263

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businesses to close on Sundays; in Big M the objection was to a business which opened on Sundays in breach of the Lord’s Day Act 1906. In the former, the court upheld the law, concluding that it did not compel observance of the Christian Sabbath. However, in the latter the SCC found that the legislative intent was solely to establish a religious bias to govern an aspect of social life that in a democracy should be a protected secular space. Accordingly, in a decision that nullified the grounds of the complaint, it struck the Lord’s Day Act for violating s.2 of the Charter. The following year the SCC, in R v. Edwards Books and Art Ltd,268 examined the Videoflicks issue and found that while the Retail Business Holidays Act limited the religious freedom of Saturday Sabbath observers such as Orthodox Jews and Seventh-Day Adventists, that restriction, in terms of its proportional effect relative to the religious beliefs of the overwhelming majority, was justified. The cases of Brockie269 and Eadie270 are among the many instances where service refusal by individual providers (printing and accommodation, respectively) on the grounds of their conscientious objection to the values represented by prospective service users, have resulted in the former being found to have violated the human rights of the latter: generic laws of universal application held to disallow exceptions that negate the central purpose of legislation. Taken together with the SCC decision in the latest of the slew of TWU cases,271 this would seem to show a caselaw trend that points to a firming up of State neutrality at least in respect of commercial service provision. Loyola272 and Mouvement laïque québécois,273 however, lean somewhat in the opposite direction indicating a judicial willingness to accommodate institutional pockets of belief that run counter to legislative intent. Overall, there continues to be strong judicial resistance to the ‘liberty laws’ that now make allowances for individuals in the U.S. to claim exemption from universal laws on grounds of religion, belief or matters of conscience. Bill C-16, prohibiting discrimination based on gender identity and gender expression throughout Canada, became law in June 2017 and made it illegal to deny services, employment, accommodation and similar benefits to individuals based on their gender identity or gender expression within a federal regulated industry. For some, this initiative is likely to conflate with their religious beliefs and lead to an increase in conscientious objections and an extension of service denial issues. The legislation is significant as it gives gender identity the status of a separate and distinct human right. It also marks a clear line of departure from the U.S. ‘liberty laws’.

268

[1986] 2 SCR 713. Brillinger v. Brockie (No. 3), (2000), 37 C.H.R.R. D/15). 270 Eadie and Thomas v. Riverbend Bed and Breakfast and others (No 2), 2012 BCHRT 247. 271 Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. 272 Loyola High School v. Québec (Attorney General), 2015 SCC 12. 273 Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. See, also, Congrégation des témoins de Jéhovah de St-Jérôme- Lafontaine v. Lafontaine (Village), [2004] S.C.J. No. 45, [2004] 2 S.C.R. 650, per LeBel J at paras. 67–68 and 76. 269

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7.8.6.2

Religious Owners of Commercial Businesses

In Knights of Columbus274 a same sex couple alleged religious discrimination when their rental application for a facility they wished to use to celebrate their marriage was rejected by the religious organisation that owned it. The latter, being an emanation of the Catholic Church, conscientiously objected to being put in a position where it would have to breach its beliefs in order to comply with universally applicable equality and non-discrimination laws and sought to rely on the religious exemption. The tribunal conceded that renting out the hall for the purpose for which it was required would have forced the organisation to act against its religious beliefs and would violate its rights under s.2(a) of the Charter. Nevertheless the organisation was fined as it had failed in its duty of reasonable accommodation: no consideration had been given to the consequences for the couple, and no attempt had been made to meet with them and explain the reasons for rejection.

7.9

Conclusion

The socio-political environment in Canada is structurally conducive to conscientious objection, which is likely to increase in volume and spread in the near future. Religion in Canada is constitutionally compromised by denominational divisions, apparent mostly in the educational sector, creating tensions between the denominations and between them and the growing numbers of secularists. The Charter principles of equality and non-discrimination are set on a course that will inevitably conflict with the exemption privileges reserved to religion and with its institutional emanations such as hospitals, schools and social care facilities, as illustrated by recent experiences in Québec. Judicial firmness in containing the potential of religion to undermine equality principles has been evident in Loyola,275 Wall276 in the most recent of the SCC Trinity Western277 decisions, while legislators and policy makers have demonstrated equal resolve in relation to Bill C-16278 and the Summer Jobs programme.279

274

Smith and Chymyshyn v. Knights of Columbus and others 2005 BCHRT 544 (CanLII). See, also, Whiteley v. Osprey Media Publishing, 2010 HRTO 2152 (CanLII). 275 Loyola High School v. Québec (Attorney General) 2015 SCC 12. 276 Wall v. Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2018 SCC 26. 277 Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. 278 Bill C-16, which took effect in June 2017, amends the 1985 Act to specifically prohibit discrimination based on gender identity and gender expression in relation to goods, services, facilities or accommodation within a federal regulated industry. 279 This federal programme, providing summer job opportunities for students and young persons throughout Canada, requires employers wishing to receive government funding to attest that they will respect Charter rights including “comprehensive sexuality education, family planning,

References

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There are strong indications that the political leadership shown by the federal government in respect of divisive social issues such as same sex marriage and medically assisted death is now encountering a build up of resistance from public service providers (e.g. in health care) and to some extent from service users (e.g. in education). It remains to be seen how the federal government and Canadian society as a whole accommodates the recent Québec initiatives. It is highly probable, however, that the tensions between embedded religious differences and the ever levelling effect of equality law will generate increased opportunities for conscientious objections which in turn will be facilitated by the singular status accorded to ‘conscience’ alongside ‘religion’ in the Canadian constitution.

References Bird BDN (2019) The Forgotten Fundamental: Freedom of Conscience in Canada, Doctoral thesis. Faculty of Law, McGill University, Montreal, p 60 FitzGerald C, McLeod C (2014) Conscientious refusal and access to abortion and contraception. Philosophy Publications, p 3 Frideres J (2008) Aboriginal identity in the Canadian context. Canadian J Native Stud XXVIII(2): 313–342 Friedman M (2015) Edward Snowden: Hero or Traitor? Considering the implications for Canadian national security and whistleblower law. Dalhousie J Legal Stud 24(1) Guy TR (2015) Opening the Doré to proportionality: discretionary administrative decisions and the Charter, LLM thesis. University of Toronto, p 1 Haigh RA (2012) A Burl on the living tree: freedom of conscience In Section 2(a) of the Canadian Charter of Rights and Freedoms (SJD Thesis). University of Toronto, (unpublished) Moon R (2014) Freedom of conscience and religion. Irwin Law, Toronto, p 188 Moon R (2019) Conscience in the image of religion. In: Adenitire J (ed) Religious beliefs and conscientious exemptions in a Liberal State. Hart Publishing Nichols RL (2017) From the sixties scoop to Baby Veronica: transracial adoption of indigenous children in the USA and Canada. In: Shackleton M (ed) International adoption in North American literature and culture: transnational, transracial, and transcultural narratives. Palgrave Macmillan, Helsinki Ryder B (2005a) State neutrality and religious freedom. The Supreme Court Law Review, Osgoode’s Annual Constitutional Cases Conference, p 29 Ryder B (2005b) State neutrality and freedom of conscience and religion. Supreme Court Law Rev:178–194 Shaw D et al (2018) Conscientious objection to deceased organ donation by healthcare professionals. J Intensive Care Soc 19(1):43–47 Shemie SD et al (2017) Ethics Guide Recommendations for Organ-Donation-Focused Physicians: Endorsed by the Canadian Medical Association, https://pubmed.ncbi.nlm.nih.gov/28437370/ Waldron MA (2013) Free to believe: rethinking freedom of conscience and religion in Canada. University of Toronto Press, Toronto

prevention and response to sexual and gender-based violence, safe and legal abortion, and postabortion care”.

Chapter 8

Australia

Abstract This chapter begins with a brief overview of the principles and policies that paved the way for the present governing legislation. It considers and differentiates between religion and other systems of belief that ground the conscientiousness of contemporary objections. It then outlines the relevant framework of laws, courts and regulatory bodies. This is followed by an analysis of the role of conscientious objection in a fundamental rights context before the chapter turns to examine the caselaw illustrating how conscientious objection and religion/belief currently intersect in relation to: public health care; social care; national defence and security; education; employment; and provision of goods and services.

8.1

Introduction

Australia, a federation of six states and ten territories, accommodates often important differences in the law applied by states, territories and federal government. In that respect it bears some similarity to the federated system in the U.S. and gives rise to similar problems of coherence and to the risks inherent in making generalisations and simplifications that fail to take account of the nuances in play at different levels and localities of government. That said, the focus in the following pages is less on structure and process, more on outcomes, though it remains necessary to at least sketch the broad legal frameworks within which conscientious objections are now generated. This chapter like its predecessors begins with a brief overview of the principles and policies that paved the way for the present governing legislation. It considers and differentiates between religion and other systems of belief that ground the conscientiousness of contemporary objections. It then outlines the relevant framework of laws, courts and regulatory bodies. This is followed by an analysis of the role of conscientious objection in a fundamental rights context before the chapter turns to examine the caselaw illustrating how conscientious objection and religion/belief currently intersect in relation to: public health care; social care; national defence and security; education; employment; and provision of goods and services.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_8

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8.2

8 Australia

Principles, Doctrines and Definitions

The diverse and pluralistic mix of cultures that constitute the population of Australia accommodates many varieties of religion and belief which provide a correspondingly broad platform for conscientious objections. In the main, however, it is the beliefs of the established traditional Christian religions that form the central axis for such objections while those of the Indigenous People remain peripheral.

8.2.1

Religion, Belief and Matters of Conscience

There are no domestic legislative provisions providing a basis for defining and differentiating religion, beliefs and matters of conscience. Instead some legislation—particularly the Racial Discrimination Act 1975 (CT)—has generated a jurisprudence that differentiates between religion and ethnicity which in turn has served to accentuate the relative separateness and significance of the traditional institutional religions while diminishing, and in some cases obscuring, that of other forms of religion or belief and matters of conscience, not least the beliefs of the Indigenous people.

8.2.1.1

Traditional Religions

In New South Wales Stewards’ Co Ltd v. Strathfield Municipal Council1 the court relied on orthodox principles to determine whether a company—which had among its objects the promotion of the true welfare of humankind in Christian or benevolent principles and the teaching of the word of God—was a ‘religious body’ and on that basis entitled to a rating exemption. Noting that ‘religious body’ and ‘religion’ were not defined in the rating statute, the court found that these terms were to be given their popular meaning—which imputed a belief in a supreme being. Forty years later, in The Church of the New Faith v. Commissioner of Pay-roll Tax,2 when considering whether a particular set of beliefs and practices could constitute a religion, Mason ACJ and Brennan J suggested that:3 . . .for the purposes of law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief . . .

1

(1944) 15 LGR 139. [1983] HCA 40; (1983) 154 CLR 120 (27 October 1983) at p. 137. 3 OV and OW op cit at para. 40. 2

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More recently, OV and OW4 was significant from many perspectives including for its exploration of what constitutes a ‘religion’. The Wesley Mission had sought to rely upon the “fundamental Biblical teaching that ‘monogamous heterosexual partnership within marriage’ is both the ‘norm and ideal” as grounds for its conscientious objection to recognising the same sex plaintiffs as suitable foster carers but the Tribunal (NSWADT) initially found, given the diversity of views across Christendom on this issue, that: “it does not follow, and nor is it asserted, that that belief can properly be described as a doctrine of the Christian religion”. Ultimately, the Court of Appeal held that the search for such a doctrine and the need to establish its conformity or otherwise with the act or practice of the Mission, was “misguided”5 and referred the issue back to the Tribunal. In reconsidering the matter, the NSWADT took the view that ‘doctrine’ was broad enough to encompass, not just formal doctrinal pronouncements such as the Nicene Creed, but effectively whatever was commonly taught or advocated by a body, including moral as well as religious principles, in a contemporary timeframe rather than as traditionally prescribed. Subsequently Hampel J, in Cobaw Community Health Services Limited v. Christian Youth Camps Limited & Anor,6 considered the objection of an entity with a religious ethos to providing a service to those perceived as violating it. The judge, in examining the significance of the ethos, heard expert evidence from theologians on the meaning of ‘doctrines of religion’. She found that the beliefs of the Christian Brethren about marriage, sexual relationships and homosexuality could not be construed as ‘doctrines of the religion.’ Not everything in the Scriptures amounts to ‘doctrine’, the prevailing cultural beliefs at the relevant time must also be taken into account.7 The Court of Appeal, endorsing Hampel J’s ruling, held that CYC was not ‘a body established for religious purposes’ and therefore could not rely on the religious exemption. While the proceedings and the decision are legally beyond reproach, this should not detract from recognizing that such an objection, being based on sincere and cogent beliefs, must be construed as expressing a corporate form of conscientiousness (see, further, below at Sect. 8.6.2). Among the implications of these decisions is an awareness that the Australian courts and regulators will focus on any declared doctrines of an organisation claiming to be a religious body. This focus would seem more pronounced than in other jurisdictions and may be attributable to the fact that some Australian legislation makes explicit reference to ‘doctrines’. However, when a legal issue arises which makes it necessary to ascertain the doctrines of a religion, it will be their formulation at the time the issue arose not as initially established which will be crucial: an approach that concurs with the advice of the UN HRC and which, by requiring the

4

OV v. QZ (No 2) [2008] NSWADT 115; Member of the Board of the Wesley Mission Council v. OV and OW (No 2) [2009] NSWADTAP 57; OV & OW v. Members of the Board of the Wesley Mission Council [2010] NSWCA 155. 5 Ibid at para. 40. 6 [2010] VCAT 1613 (8 October 2010). 7 Also, see, Ananda Marga Pracaraka Samgha Ltd v. Tomar (No 6) [2013] FCA 284.

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doctrine to be contexturalised within contemporary cultural values and norms, may allow traditional religious dogma to be side-stepped. Despite Latham CJ’s assertion, in Adelaide Co of Jehovah’s Witnesses Inc v. Commonwealth,8 that “it is not an exaggeration to say that each person chooses the content of his own religion” in determining what constitutes a religion or belief, Australian law has not strayed far from its roots. The corollary being that conscientious objection is similarly mainly anchored on a traditional interpretation of religion and beliefs.

8.2.1.2

Contemporary Belief Systems and Matters of Conscience

Although the traditional institutional religions—largely Christian—continue to structure the Australian religious landscape, while Indigenous beliefs maintain a parallel if discrete presence, the understanding in law and society of the range of emerging beliefs that may legitimately claim equal recognition is steadily broadening. In Church of the New Faith9 the court was clear that “it is not within the judicial sphere to determine matters of religious doctrine and practice”.10 Nonetheless, it then went on to consider whether the doctrines and beliefs of Scientology could be construed as meeting the definition of religion and concluded that it did; thereby reaching the opposite decision to that made in England & Wales, on the same set of facts. Although unable to agree on what might constitute such a definition, there was consensus that it should extend to philosophies which “seek to explain, in terms of a broader reality, the existence of the universe, the meaning of human life and human destiny.”11 The indicia of religion as discussed by Wilson and Deane JJ were: that the particular collection of ideas and/or practices involved belief in the supernatural, ie a belief that reality extended beyond that which was capable of perception by the senses; that the ideas related to man’s nature and place in the universe and his relations to things supernatural; that the ideas were accepted by adherents as requiring or encouraging them to observe particular practices having supernatural significance; and that, however loosely-knit and varying in beliefs and practices adherents might be, they constituted an identifiable group or identifiable groups.12 Such an expansive interpretation of ‘religion’ correspondingly expands the grounds validating the conscientious of an objection.13

8

(1943) 67 CLR 116 at 124. Church of New Faith v. Commissioner of Pay-Roll Tax (1983) 1 VR 97. 10 Ibid, per Murphy J at pp. 150–151. 11 Ibid, at para. 13. 12 (1983) 154 CLR 120 at para. 18. 13 For a critique of the decision, see Sadurski (1989), pp. 834–843. See, also, Nelson v. Fish (1990) 21 FCR 430. Note that in R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages [2013] UKSC 77 the Supreme Court adopted much the same approach. 9

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Legitimacy and Cogency Any suggestion that the many terrorist attacks by Islamic extremists could be construed as a form of conscientiously based objection to perceived violations of Muslim religious beliefs have been robustly and repeatedly rejected by the judiciary. In R v. Khaja, for example, while respecting the cogency of the beliefs expressed in the Quran, Fagan J dismissed the claim that they could be legitimately interpreted as justifying the “furthering of Islamic ideology by force and fear through indiscriminate killing of non-Muslims”.14 The judiciary have been equally skeptical in relation to claims purportedly made in furtherance of convictions for more peaceful ends. The Freethinkers case15 concerned a society the beliefs of which included that “science provides for life and that materialism can be relied upon in all phases of society”. The court considered that as the purpose of the organisation was to work against already established religions or against the idea of religion, the organization could hardly be construed as ‘religious’. In the Scientology case16 Mason, acting CJ, and Brennan J warned that “the mantle of immunity would soon be in tatters if it were wrapped around beliefs, practices and observances of every kind whenever a group of adherents chose to call them a religion. . .”.17 It would seem that although the law is increasingly intersecting with new and diverse religions this is not resulting in a more permissive judicial attitude that recognizes a parity of status between them and the more traditional religions.

Beliefs of Indigenous People There are no statutory provisions designed to recognise and accommodate the dreamtime rites—which vary from tribe to tribe in accordance with tribal boundaries, topography and ancestor narratives—that constitute the religious beliefs of Indigenous people.18 The case for extending such recognition has been well made.19 Enquiries undertaken to establish whether such beliefs could be construed as religious were the subject of judicial scrutiny in ALRM v. State of South Australia.20 The Supreme Court of South Australia then held that an inquiry into the genuineness of the belief of Ngarrindjiri women was lawful, notwithstanding that those beliefs were, under Aboriginal rule, confidential to women. More recently, the destruction of a 46,000-year-old Indigenous site in Western Australia by the global mining giant Rio

14

R v. Khaja, op cit, per Fagan J at p. 27. Re Jones [1907] SALR 1990 (Incorporated Body of Freethinkers of Australia). 16 Church of New Faith v. Commissioner of Pay-Roll Tax (1983) 1 VR 97. 17 Ibid at p. 132. 18 See, Tan (2010). 19 See, for example, Gallois (2007). 20 (1995) 64 SASR 551. 15

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Tinto triggered vociferous conscientious objections from the local Indigenous community—outraged at the erasure of what for them had been a sacred site—and resulted in the resignation of the company’s CEO.21

8.2.2

State Neutrality

By the mid-19th century, Christianity in Australia—represented by the Roman Catholic, Anglican, Presbyterian, Methodist, Lutheran and Pentecostal churches— was well established as was the porous interface between Church and State with many instances of prominent persons being simultaneously leading members of both. There is a particularly strong relationship between government and the traditional Christian religions in Australia, combined with weak constitutional safeguards separating Church and State and the absence of a bill of rights. Given the relatively strong and lasting public benefit service partnership between government and the Christian religions, it is unsurprising that in practice the government’s avowed secularist public policy is quite constrained as illustrated by its funding of religious schools, hospitals, community service providers etc. Section 116 of the Constitution does not prohibit the State from encouraging or giving aid to religion, and there is no constitutional obstacle to laws that indirectly assist the religious to further their religious goals. As Barwick CJ once explained, s.116 was “directed to the making of law . . . not . . . the administration of a law”.22 This has permitted, for example, the adoption of explicit policies of State aid for denominational schools during the 1960s and the State funding of chaplaincy services; matters which have generated sustained conscientious objections.23

8.2.2.1

Preferencing Christianity and the Christian Cultural Heritage

Despite the preponderance of non-Christians in the adjacent Pacific Rim nations, the dominance of Christianity in Australia was continued and reinforced by the White Australia policy.24 By the late twentieth century changes in immigration policy had led to a considerable re-balancing of religious/ethnic affiliations—but by then the Christian churches had become an integral part of Australia’s social fabric. 21

See, further, at: https://www.theguardian.com/australia-news/2020/may/26/rio-tinto-blasts-4 6000-year-old-aboriginal-site-to-expand-iron-ore-mine. 22 Attorney-General (vic) (Ex rel Black) v. Commonwealth (1981) 146 CLR 559, per Barwick CJ, at pp. 580–581. 23 Hoxton Park Residents Action Group Inc v. Liverpool City Council [2016] NSWCA 157. 24 Initiated by the Immigration Restriction Act 1901 and lasting until the latter decades of the twentieth century, it effectively stopped all non-European immigration. See, further, Windshuttle (2004).

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A side effect of the substantial and sustained presence of Christian churches, accompanied by a well developed outreach capacity, was their ability to achieve a partnership with government on public benefit service provision that is possibly unique in the common law world. From an early stage, government policy has largely been to fund where it can the delivery of public benefit services—such as schools, hospitals, aged care homes, child care and social care facilities etc—by religious organisations, rather than do so itself, a policy accelerated in the last few decades by privatisation. This arrangement continues and necessarily gives the Christian churches, relative to all others, an institutional presence and influence on government, communities and public service users. Such organisations very often subject service users and staff to ‘institutionalised conscientious objection’ by applying religious filters when determining service access and staffing arrangements; which in turn may generate reciprocal conscientious objections from those filtered out. The White Australia policy was a deliberate and largely successful State strategy employed to reinforce the country’s dominant Euro-centric cultural heritage. For little more than two centuries the ‘settler’ population has co-existed alongside the ‘Indigenous people of Australia’, a term that refers to a racial group now comprising approximately 500 distinct communities. The significance of their cultural heritage—to others—only acquired salience in recent decades as a consequence of the intrusion of mining companies onto land traditionally occupied by the Indigenous people causing disruption to ancient sites of worship and ritual.

Indigenous People Having existed on the continent of Australia for at least 40,000 years before its discovery in 1788 by white Caucasians, their displacement by the latter has—ever since—structured that relationship and compromised the cultural heritage of the Indigenous people. Recognition of their distinct ethnicity and culture has grown in political importance over recent decades and has occasionally been accorded judicial notice: “the Nyungah elders are an ethnic group in that they have a shared history, separate cultural tradition, common geographical origin, descent from common ancestors, a common language and a religion different to the general community surrounding them”;25 as was “the freedom of certain Ngarrindjeri people to hold and practise their religion”.26 The conversion and assimilation policies pursued by both Church and State in relation to the Indigenous people continued up until the mid twentieth century and included the tragically misguided ‘Stolen Generation’ episode which was wholly

25

Wanjurri v. Southern Cross Broadcasting (Aus) Ltd (2001) EOC 93-147, per Commissioner Innes. 26 Aboriginal Legal Rights Movement Inc v. State of South Australia and Iris Eliza Stevens (1995) 64 SASR 551, per Doyle CJ at pp. 552–553.

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prejudicial towards their traditional religious and cultural practices. This scandal marked a significant milestone in the tangled relationship between State, Christianity and the Indigenous people. Beginning with the Aboriginals Ordinance 1918 (NT) and officially ending at least in New South Wales in 1967, it authorised the uprooting of some 30,000 aboriginal children from parents and communities and their placement with total strangers in White Caucasian families. The practice persisted for some time in the late 20th century on an informal basis with many Indigenous mothers pressurised into parting with their children either directly to prospective adopters or to ‘orphanages’.27 The subsequent protests from Indigenous communities may be reasonably interpreted as constituting a form of class conscientious objection.

8.2.2.2

The Religious Exemption

The Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth), together with equivalent state and territory anti-discrimination statutes, provide that religious organisations and religious educational institutions are granted an exemption where a discriminatory act or conduct has been required to ensure conformity with doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. It allows such bodies to discriminate—or apply ‘institutionalised conscientious objection’—in relation to: the provision of accommodation; the ordination or appointment of priests, ministers of religion or in the training or education of such persons or in the appointment of persons to perform religious duties or functions, and any other act or practice of a body established for religious purposes; and by educational institutions established for religious purposes in relation to the employment of staff and the provision of education and training, provided that the discrimination is in ‘good faith’. The 1984 Act has been amended by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which reprises certain exemption privileges traditionally enjoyed by religious organisations, but specifically exempts private schools and hospitals owned by religious organisations from its gender identity and sexual orientation provisions. However, there are limits to the religious exemption. In Walsh v. St Vincent de Paul Society Queensland (No. 2)28 the respondent was found to be a society of lay faithful closely associated with the Catholic Church, rather than a “religious body”, and therefore not entitled to avail of the religious exemption. Objections on religious grounds to paying taxes that could be used to provide for abortions29 and to

27

See, Swain (2013), pp. 203–217. [2008] QADT 32. 29 Daniels v. Deputy Commissioner of Taxation [2007] SASC 431 (Unreported, Debelle, Sulan and Vanstone JJ, 7 December 2007). 28

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revealing the contents of a religious confession have been summarily dismissed.30 The religious exemption was clearly central to the lengthy proceedings that constituted the OV and OW case and Cobaw Community Health Services Limited v. Christian Youth Camps Limited & Anor31 (see, further, below at Sect. 8.6.2). The exemption was also central to Mornington Baptist Church Community Caring Inc32 when a Baptist Church unsuccessfully sought to avail of the exemption privilege to restrict staff selection to those who had “publicly confessed Jesus Christ” and were “walking in daily fellowship with Jesus”. Their claim failed because the organisation was unable to show why its religious beliefs required it to so restrict employment in order to fulfill the functional tasks of its community care projects.

8.3

Conscientious Objection and Exemption: An Evolving Policy

The privileged status of mainstream Christianity has been a consistently dominant characteristic of Australian society. Its representatives have been most strident in opposition to emerging legislative initiatives, providing recognition and protection for certain minority groups, because these have been seen to conflict with the principle of freedom of religion.

8.3.1

Initial Exemptions

Conscientious objection probably first gained recognition in law with the right, granted under the Defence Act 1903, to total exemption from military service for “those who could demonstrate a conscientious objection to bearing arms”. Australia, in fact, was the first country to provide a statutory exemption. However, this did not prevent the court, in Krygger v. Williams,33 from finding that a conscientious objector could not object to compulsory military service on the ground of religious belief. The then Chief Justice, Sir Samuel Griffith, described such a proposition as “absurd” and added that s.116 only protected “the doing of acts which are done in the practice of religion. To require a man to do a thing which has nothing to do with religion is not prohibiting him from a free exercise of religion”. Such stringent attitudes persisted up until at least Australia’s engagement in the Vietnam war when

30

SDW v. Church of Jesus Christ of Latter-Day Saints (2008) 222 FLR 84. [2010] VCAT 1613 (8 October 2010). 32 (2006) EOC 93-422 (VCAT). 33 (1912) 15 CLR 366. 31

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in Ex parte Thompson34 the court held that only an objection to all military service at any time would satisfy the legal requirements for conscientious objection. The other most orthodox—if singularly Australian—form of conscientious objection initially surfaced in Judd v. McKeown35 when the appellant, a committed socialist who as a matter of conscience had refused to vote, was convicted of failing to do so ‘without a valid and sufficient reason’ contrary to the compulsory voting provisions of the Commonwealth Electoral Act 1918 (Cth). Although Higgins J expressed the view, at variance with the Krygger decision, that if the appellant had had a religious rather than a political objection to voting then this would have been protected under s.116.36

8.3.1.1

Legal Recognition of ‘Conscience’

The right to freedom of conscience, a secular extrapolation from the well established right to religious freedom, found recognition and protection in Australia when it ratified the ICCPR in 1980 though, as this was never assimilated into domestic law, it remains enforcible only under international law.37

8.3.1.2

An Aspect of Citizenship

The above mentioned Judd v. McKeown38 was an early case illustrating the significance of balancing basic citizenship duties against personal convictions. More recently, a conscientious objection on religious grounds to paying taxes that could be used to provide for abortions39 was summarily dismissed. Little credence was given to a challenge to the introduction of the GST that to do so would breach the obligation of Muslims not to collect taxes on behalf of government. The court held that “the importance of maintaining a sound tax system is of such a high order that the religious belief in witholding GST tax is not protected by s.116”.40 For some time now the intersect between citizenship and conscientious objection has acquired heightened political salience in the context of the Australian policy towards asylum seekers or refugees (see, further, below at Sect. 8.4.2). 34

(1968) 42A L.J.R. 173. (1926) 38 CLR 380. 36 See, further, Foster, N.J., ‘Religious Freedom in Australia’, keynote address at 2015 Asia Pacific JRCLS conference, Sydney, at: https://works.bepress.com/neil_foster/94/. 37 Author acknowledges advice from Kath Hall on this matter (note to author, 07.09.2021). 38 (1926) 38 CLR 380. 39 Daniels v. Deputy Commissioner of Taxation [2007] SASC 431 (Unreported, Debelle, Sulan and Vanstone JJ, 7 December 2007). 40 See, Halliday v. Commonwealth of Australia [2000] FCA 950, per Sundberg J at p. 20. See, also, Daniels v. Deputy Commissioner of Taxation [2007] SASC 431 where the challenge, on religious grounds, to paying tax was in relation to government funding of abortion services. 35

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Voting in National Elections Interestingly, and unusually for a modern democracy, voting is compulsory at federal elections, by-elections and referendums for those on the electoral roll— enrollment is not optional—as well as for state and territory elections. This mandatory, universally applicable legal requirement is enforced by fines and is often the subject of objections, some of which—being grounded on cogent and firmly held beliefs in non-intrusive government—may be termed conscientious. Such, indeed, seemed to be the case in Judd v. McKeown.41

8.3.2

Abortion, Contraception and Adoption: A Context for Developing Policy

Not until 2021 was the decriminalisation of abortion across Australia completed when New South Wales finally repealed its 119-year-old law prohibiting such procedures. Contraception met with similar resistance: the Criminal Law Amendment Act 1969 made it legal for the first time to use, sell and possess contraceptives. As elsewhere in the Part III jurisdictions, contraception generally and ‘the morning after pill’ in particular are a focus of protest from religious entities especially the Catholic Church. Adoption as a formal statutory procedure began in Western Australia with the Adoption of Children Act 1896 (WA). This legislative response to public concerns, regarding both the social circumstances of unmarried mothers and the vulnerable position of those who voluntarily undertook the care of children in the late 19th century, proceeded on a state-by-state basis.42 For a large part of the twentieth century it was the social stigma associated with the role of a single mother which pressurised many in that position to surrender their children for adoption; a pressure resisted by the Australian Relinquishing Mothers Society (ARMS) and others who conscientiously objected to the religiously driven value system responsible for ostracizing single mothers.

8.3.3

Same Sex Relationships: Evolving Contemporary Policy

Australia’s sustained cultural affinity with England did much to ensure maintenance of the social mores and related laws reflective of ‘the motherland’s’ religious values. The legacy of that cultural heritage proved resistant to granting equality rights to same sex couples. 41 42

(1926) 38 CLR 380. See, further, Quartly et al. (2013).

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The landmark decision in the decriminalisation of homosexuality was Toonen v. Australia43 decision, following which the Human Rights (Sexual Conduct) Act 1994 was introduced which “enshrined the right to privacy for consensual homosexual activity between adults in private” an important step in the path towards the eventual decriminalisation of homosexuality between adults across Australia. This change in national law, including “a significant amount of federal law reform in 2010 in relation to federal laws that were relevant, followed by state-by-state change thereafter”, was due in large part to effective campaigning by groups such as the Campaign Against Moral Persecution (CAMP) in New South Wales and similar advocates who challenged the prevailing governing religious values; equally, the change was as strongly resisted by the ‘institutionalised conscientious objection’ of the Catholic Church and other religious organisations.44 The legal prospect of same sex marriage met with ‘institutionalised conscientious objection’ from religious organisations—Muslim and Judaism as well as from Catholicism and an array of Protestant churches—focusing on the immorality of such relationships and on the perceived deficiencies of same sex parenting. Simpson v. Brockmann,45 for example, concerned a lesbian couple each with a child conceived through IVF, fathers unknown, who had lived together as a family unit for some years before relationships broke down and they initiated sepration and custody proceedings. The Family Court found that although such proceedings were designed for heterosexual couples, nonetheless persons other than biological parents were parents for the purposes of the Family Law Act and ruled that a lesbian couple, living together as partners with their children for more than 9 years, met the definition of ‘parents’. Since then the legal definition of what constitutes a family unit has been broadened by legislation. The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 amended the 1984 Act to provide new protections from discrimination on the basis of sexual orientation, gender identity and intersex status.46 However, not until the Marriage Amendment (Definition and Religious Freedoms) Act 2017 amended the Marriage Act 1961 did marriage between two persons of marriageable age, regardless of their gender, become possible. This 2017 Act contained provisions granting significant concessions to those with conscientious objections to the legislative intent: it not only exempted ministers of religion from any obligation to officiate in marriage ceremonies, but extended the exemption to civil registrars where to do so would compromise their beliefs (e.g. same sex marriages, or involving previously divorced or interfaith couples); it also excused religious organisations, enabling them to refuse to provide facilities, goods or

43

Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992. Author acknowledges advise from Kath Hall on this matter (note to author, 07.09.21). 45 [2012] FamCAFC 37. 46 See, further, the Australian Human Rights Commission, Same-Sex: Same Entitlements, 2007, at: http://www.humanrights.gov.au/our-work/sexual-orientation-sex-gender-identity/publications/ same-sex-same-entitlements. 44

8.3 Conscientious Objection and Exemption: An Evolving Policy

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services if to do so would compromise either their beliefs or those of their religious communities. Trans persons were next to encounter difficulties with the law relating to marriage. In the sequence of minorities seeking to break from legal and social constraints imposed as a consequence of the religious values of an earlier era, these are perhaps the most recent group to achieve recognition and equality rights. This has been partly as a result of individuals objecting—often conscientiously—to being treated differently from others in the same circumstances. For example, in Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equality Commission47 the Family Court recognized the re-assigned gender status of a transsexual person and their consequent right to marry someone of the now opposite sex but did so only after taking into account evidence of hormonal therapy and irreversible surgery. Hanover Welfare Services Ltd (Anti-Discrimination Exemption)48 concerned the ruling of a regulatory authority that a women’s shelter was exempted from the relevant anti-discrimination legislation thereby allowing it to reject male-tofemale transgender persons as “women” for the purposes of providing shelter. In the more recent G v. Australia49 the UN HR Committee ruled that the State breached its human rights obligations under Article 26 of the ICCPR by not providing a means for a transgender person to have their birth certificate amended in accordance with their new gender identity.

8.3.4

Medical Advancement: Contiguous Policy Development

In Australia, as in all the developed nations, advances in science and medicine are generating evermore complex issues for morality and bioethics, thereby increasing the scope for corresponding conscientious objections. Whether the law should permit the research, or patenting of inventions, that involve hES (human embryonic stem cells) cells, has been disputed by conscientious objectors in Australia as in many other jurisdictions. In 2007, remarks made by an Australian Catholic Cardinal opposing such research were referred to the New South Wales parliamentary privileges committee for allegedly being in “contempt of parliament”. The Cardinal was cleared of the charge and the committee described the move as a “clumsy attempt to curb religious freedom and freedom of speech”.50 The Cancer Voices case51 provided the first Australian decision on the issue of whether a valid patent may be granted for naturally occurring DNA and RNA that had been isolated and separated from human cells; the isolated gene being BRCA1.

47

[2003] FamCA 94. Also, see, Re: Wakim ex parte McNally, (1999) 198 CLR 511. [2007] VCAT 640. 49 CCPR/C/119/D/2172/2012, (2017). 50 See, further, at: http://www.catholicculture.org/culture/library/view.cfm?id¼7801. 51 Cancer Voices Australia v. Myriad Genetics Inc [2013] FCA 65. 48

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The HCA52 found that isolating a gene did not in itself constitute a manufacturing process and, in overturning the earlier decisions, brought Australian law on this matter into conformity with that in the U.S.53 but away from the European approach. While this decision turned squarely on legal technicalities, the underlying issue in Australia as in other continents has been, and will continue to be, the extent to which the law of patents may permit companies to carve out commercial monopolies in the use of genetic material. This is a case that serves as an early warning of the legal and morality issues involved in such research and of the probability of it continuing to attract conscientious objectors. As advances in medicine prolonged life they inevitably also prolonged the suffering associated with ageing which gradually increased the lobbying for medically assisted death. It was the Northern Territories that became, if briefly, the world’s first jurisdiction to legalise euthanasia54 with the Rights of the Terminally Ill Act 1996, but no similar federal initiative was ever taken and with the Euthanasia Laws Act 1997 it became illegal55 in all states and territories. Anathema to the Catholic Church and resisted by many other religious organisations, the prospect of medically assisted death becoming a public health service also attracted vigorous and sustained conscientious objections from many health care professionals and others. Of course this was met by reciprocal similar objections from those who believed, just as vehemently, that it was unconscionable to use modern medicines to prolong unnecessary suffering.

8.4

From Policy to Legislation

For present purposes, the translation of a government policy designed to address religiously based privilege by means of provisions drafted—and now redrafted—in the form of a Religious Discrimination Bill, is of particular importance. How this Bill fits with existing equality and non-discrimination legislation is likely to have a direct effect on the volume and type of future conscientious objections.

52

D'Arcy v. Myriad Genetics Inc & Anor [2015] HCA 35. See, Association for Medical Pathology v. Myriad Genetics Inc 596 – (2013). 54 See, Toonen v. Australia CCPR/C/D/488/1992 (4 April 1992) and Christopher John Wake and Djiniyinni Gondarra v. Northern Territory of Australia and the Honourable Keith John Austin Asche AC, The Administrator of the Northern Territory of Australia (Unreported judgment of the Supreme Court) No 112 of 1996 (24 July 1996). 55 See, for example, R v. Shirley Justins [2011] NSWSC 568. 53

8.4 From Policy to Legislation

8.4.1

385

Universal Legislative Constraints

For Australia, with its eclectic mix of racial and religious groups, containing within it the disproportionately disadvantaged and culturally distinct and largely alienated Indigenous communities, the challenges of legislating so as to accommodate the needs of most without unduly constraining the rights of some, is particularly challenging.

8.4.1.1

Laws that Unfairly Burden a Minority

As in other CANZUS jurisdictions, the legislative intent of laws designed to uniformly apply and promote the public benefit of all Australian citizens has sometimes adversely affected the cultural mores of its Indigenous people. For example, the introduction of a statutory adoption process was anathema to Indigenous communities for whom the concept of adoption is itself rejected56 as they hold the view that children are ‘free spirits’ and cannot be ‘owned’ by anyone. Instead, they practiced ‘customary adoption’ whereby a child might be informally placed with another family—most usually within the same tribe—to be reared by them but in the full knowledge of, and while maintaining ongoing contact with, their birth parents. The imposition of a mandatory regulatory process favouring ‘stranger adoption’ triggered memories of ‘the lost generation’ trauma and met with strong conscientious objections from those who viewed such a process as violating their religious/cultural beliefs. Again, in common with other nations, there are recurring difficulties with laws governing the manifesting of religious belief in schools through wearing indicative clothing, display of icons, prayers and rituals etc.

8.4.1.2

Criminal Law Constraints

The introduction of the Australian Anti-Terrorism Act 2005 (revised) was followed in 2014 by the National Security Amendment Act and the Crimes (Foreign Incursions and Recruitment) Act, all intended to hamper the activities of any potential domestic terrorists, obstruct Isis recruitment for Middle East jihadist warfare, by measures such as banning organisations and the criminalisation of membership of

56 See, Queensland Government, The Adoption Legislation Review: Public Consultation, Department of Families, 2003 which notes that:

A key theme in the consultation forums with Aboriginal and Torres Strait Islander peoples throughout the State was that adoption, as conceived in the Adoption of Children Act 1964, is not a culturally appropriate care option for Aboriginal and Torres Strait Islander children at p 3.

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certain associations. By any standards, Australia’s current anti-terrorism and detention laws are harsh and often the focus of lobbying for dilution. Blasphemy continues to be a criminal offence in some states and territories. In 2016 the Australian Capital Territory amended the Discrimination Act 1975 to introduce the offence of ‘religious vilification’ and “offensive behaviour’ ostensibly for the protection of Muslims, but with potential application in respect of all religions. On a federal basis, the Racial Discrimination Act 1975 provides some protection however inadequate from such vilification and offensiveness.

Covid-19 Pandemic Constraints Covid-19 is explicitly listed as a disease for the purposes of the Biosecurity Act 2015 and the penalties for refusing the related vaccine, under s.479, would seem to apply: 5 years imprisonment and/or a substantial fine.57 Arguably, therefore, covid vaccination could potentially have a mandatory status and universal applicability, reinforced by the criminal law.58 In so defining covid as constituting a national security risk, thereby justifying mandatory universal vaccination—should the relevant provisions of the Biosecurity Act be triggered—Australia could potentially have established an interesting precedent for other nations.59 As of autumn 2021, however, this step had not been taken and Australia, in keeping with all other Part III democratic societies, relied on State encouragement to promote the national rollout of its voluntary vaccination programme in the face of considerable resistance from a minority, some objecting conscientiously.

8.4.2

Contemporary Government Initiatives

In August 2019, following recommendations made by the Expert Panel into Religious Freedom (‘the Ruddock report’),60 the Prime Minister unveiled a draft of the federal government’s controversial religious freedom legislation for public consultation. This consisted of: the Religious Discrimination Bill 2019; the Religious

57

See, Biosecurity Act 2015: Australian Government Department of Health - Listed Human Diseases 2020, at: https://www1.health.gov.au/internet/main/publishing.nsf/Content/ohp-bioseclist-diseases.htm. 58 In 2021 the office of the UN high commissioner for human rights questioned whether these penalties are consistent with Australia’s human rights obligations. See, further, at: https://www. theguardian.com/australia-news/2021/may/05/un-raises-serious-human-rights-concerns-over-aus tralia-india-travel-ban. 59 See, further, ‘Covid-19: Less haste, more safety’, BMJ 2020; 370: m3258, at: https://www.bmj. com/content/370/bmj.m3258/rr-17. 60 Religious Freedom Review (2018), at: https://www.ag.gov.au/sites/default/files/2020-03/ religious-freedom-review-expert-panel-report-2018.pdf.

8.5 Legislative Framework: International and Domestic

387

Discrimination (Consequential Amendments) Bill 2019; and the Human Rights Legislation Amendment (Freedom of Religious) Bill 2019. The declared purpose of this legislation is to provide protection against discrimination on the basis of religious belief or activity in key areas of public life, including in the provision of healthcare. However, there is some doubt as to whether these statutes will ever become law.

8.5

Legislative Framework: International and Domestic

As has been noted “Australia is largely alone among liberal democracies in taking a piecemeal, rather than a comprehensive, approach in the incorporation of its international human rights obligations into domestic law”.61

8.5.1

International Legislation

Australia is a signatory State to all major international treaties, conventions and protocols, including: the International Convention on the Elimination of all Forms of Racial Discrimination 1965; the International Covenant on Economic, Social and Cultural Rights 1966; the International Covenant on Civil and Political Rights 1966; the Convention on the Elimination of All Forms of Discrimination Against Women 1979; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984; the Convention on the Rights of the Child 1989; and the Convention on the Rights of Persons with Disabilities 2006 (see, further, at Sect. 3.2).

8.5.1.1

The International Covenant on Civil and Political Rights (ICCPR)

Ratified in 1980, although not assimilated into its domestic law, ICCPR provisions and the UPR process are fully binding upon Australia and it has acceded to Optional Protocol 1.62 Article 18(1) protects the right to manifest religion or belief which is further endorsed by the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.63 The ICCPR is supplemented by General Comment 22 (see, also, at Sect. 3.2).

61

Australian Human Rights Commission, Religious Freedom Review (2018). See, Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/ 1992 (1994). 63 GA Res 36/55, UN GAOR, 36th sess, UN Doc A/36/684 (25 November 1981). 62

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Other Australia initially voted against adopting the UN Declaration on the Rights of Indigenous People 2007, but ultimately removed its objections in 2009. Also, because of the tendency for Australian litigation to conflate matters of racial and religious discrimination, ICERD has considerable relevance (see, further, at Sect. 3.2).

8.5.2

The Constitution and Federal Legislation

Australia has the distinction of having neither a national human rights statute nor a constitutional bill of rights. This singularity regularly attracts protests, most recently from the AHRC.64

8.5.2.1

The Constitution

Although the Constitution does not contain a ‘bill of rights’—in fact Australia has the singular distinction of being the only modern democratic country without such protection65—it does provide, directly or implicitly, for certain rights and freedoms. Section 116, for example, states that: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

However, the specific wording of the Constitution in effect confines the application of s.116 to the powers of the Commonwealth legislature.66 Each state and territory has its own constitution, formulated between 1840 and 1859.

8.5.2.2

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)

This statute amended the Marriage Act 1961, changing the definition of marriage and the protection of religious freedom, to allow marriage between two persons of marriageable age, regardless of their gender.

64

Australian Human Rights Commission, Religious Freedom Review (2018) at para. 90. See, further, Saunders (2010), pp. 117–135. 66 Grace Bible Church v. Reedman [1984] 36 S.A.S.R. 376. 65

8.5 Legislative Framework: International and Domestic

8.5.2.3

389

Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth)

Amending the Sex Discrimination Act 1984, this statute enacts CEDAW and makes it unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status under federal law.

8.5.2.4

The Human Rights (Parliamentary Scrutiny) Act 2011

This took effect on 4 January 2012 and requires all new legislation introduced to the Federal Parliament to be assessed for compatibility with human rights. It also established a new parliamentary joint committee on human rights and a National Action Plan for implementing related commitments was launched in 2012. The Act implemented ‘Australia’s Human Rights Framework’ but did not create a Charter of Rights.

8.5.2.5

The Fair Work Act 2009 (Cth)

This protects freedom of association and extends the specific legal protection previously given to religious non-discrimination in the workplace.

8.5.2.6

The Human Rights and Equal Opportunity Commission Act 1986 (Cth)

This statute established the Human Rights and Equal Opportunity Commission which, in 2008, was renamed the Australian Human Rights Commission (AHRC). It implements Australia’s human rights obligations under the International Labour Organization Convention (No 111) concerning Discrimination in respect of Employment and Occupation. The Commission has the function of inquiring into and attempting to reach a settlement of complaints through conciliation. The pending Religious Discrimination legislation will create a new office of Freedom of Religion Commissioner within the AHRC.

8.5.2.7

The Sex Discrimination Act 1984 (Cth)

As amended, this legislation prohibits discrimination on the basis of sex, marital or relationship status, actual or potential pregnancy, sexual orientation, gender identity, intersex status or breastfeeding in a range of areas of public life including employment, education and the provision of goods, services and facilities.

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8.5.2.8

The Racial Discrimination Act 1975 (Cth)

Essentially, this statute assimilates ICERD into domestic law. For clarification as to what constitutes ‘discrimination’, s.9 refers to the rights established in Article 5 of ICERD while s.10 establishes a general right to equality before the law. Section 18 (c) prohibits speech that insults, offends or humiliates people based on their race. If a religious group can also be classified as an “ethnic” group, the racial hatred provisions may then cover direct and indirect discrimination and vilification against it or its members. Even if a religious group cannot be classified in that way, the Act may cover discrimination on the basis of religion in certain circumstances such as indirect race discrimination. In Jones v. Scully67 the court found that Jews constitute an ethnic group for the purposes of this statute and their vilification constitutes racial discrimination.68

Other At federal level, equality and anti-discrimination provisions are to be found in a range of legislation of which some, such as the Fair Work Act 2009 (Cth), offer limited protection against discrimination on the basis of religious belief. In November 2012, the government released a draft of its Human Rights and AntiDiscrimination Bill 2012, but the Bill was suspended and the government settled for amending the more deficient features of the Sex Discrimination Act. The Australian Bill of Rights Bill 2019 promises to give effect to certain provisions of the ICCPR, the ICESCR, the UN CRC and other international instruments but this is in abeyance. So too is Australian Religious Discrimination Bill 2019, the legislative intent of which is to extend protection from discrimination on the ground of religion. At states and territories level: there are various laws that prohibit the vilification of persons, singularly or as a group, on the basis of their religion (Queensland, Tasmania and Victoria); while all except New South Wales and South Australia have legislation that makes “religious belief” a prohibited ground.

8.6

Framework of Courts and Regulatory Bodies

Australia’s court and regulatory bodies operate with almost complete independence and autonomy.

67 68

[2002] 120 FCR 243. Jones v. Tonen [2002] FCA 1150.

8.6 Framework of Courts and Regulatory Bodies

8.6.1

391

International Courts and Regulatory Bodies

Australian judicial decisions are not amenable to any international judicial oversight. Australia is, however, subject to the HRC monitoring role conducted through the Universal Periodic Review process.

8.6.2

Domestic Courts and Regulatory Bodies

The states and territories of Australia each have their own hierarchy of courts and tribunals with a right of appeal to a supreme court and thereafter to a federal court.

8.6.2.1

The High Court of Australia (HCA)

This is the supreme court and final court of appeal. Its federal jurisdiction is derived from authority vested in it by the Constitution, s.75 and s.76, and its appellate jurisdiction is defined by s.73. Appeals lie to it from the Federal Court of Australia (FCA).

8.6.2.2

The Federal Court of Australia (FCA)

This superior court has jurisdiction to deal with most civil disputes governed by federal law. It includes an appeal division, the Full Court, comprised of three judges.

8.6.2.3

The Australian Human Rights Commission

The AHRC is a national independent statutory body with responsibility for investigating matters protected by Australia’s anti-discrimination legislation. This body has issued important reports on religious belief.69

8.6.2.4

The Human Rights and Equal Opportunity Commission

The Commission is the regulating body for such law and practice as is governed by: the Racial Discrimination Act 1975; the Sex Discrimination Act 1984; the Disability Discrimination Act 1992; and the Human Rights and Equal Opportunity 69

See, the Australian Human Rights Commission: Freedom of Religion and Belief, 1998; Freedom of Religion and Belief in the 21st Century, March 2011; and Religious Freedom Review, February 2018.

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Commission Act 1986. The latter gives rise to its responsibilities in respect of religious discrimination which are informed by Articles 18, 20 and 26 of the International Covenant on Civil and Political Rights 1966 (ICCPR) and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981.

8.6.2.5

The Human Rights Law Centre

This is an independent, not-for-profit organisation which advocates for the protection and promotion of human rights in Australia. It works across a range of areas including advocating for reform to anti-discrimination laws and stronger protection for human rights—including freedom of religion. It has called for “the introduction of a federal Human Rights Act that protects freedom of religion and belief, among other rights, and the addition of religious belief (including non-religious belief such as a humanist, atheist or other belief that is not religious in nature) to those attributes already protected under federal discrimination law”.70

8.7

Fundamental Human Rights and Conscience

Australia is party to seven core international human rights treaties including those that oblige it to protect the right to freedom of thought, conscience and religion or belief as expressed in: Article 18 of the ICCPR; Article 5 of ICERD; and Article 14 of the UN CRC. Domestically, s.116 of the Constitution prohibits the making of any law for establishing religion, or for imposing any religious observance, or for prohibiting the free exercise of religion. Collectively these instruments provide both a rights framework for religion/belief/conscience and a basis for grounding conscientious objections.

8.7.1

Right to Freedom of Expression

The right to communicate and receive opinion, information and ideas without interference is clearly crucial to conscientious objection as illustrated in the many conflicts between it and the right to religious freedom.71 For example, in Deen

70 See, Human Rights Law Centre at: https://www.hrlc.org.au/news/2017/6/7/freedom-of-religionor-belief-should-have-federal-protection-with-appropriate-mechanism-for-balancing-competingrights. 71 See, for example: Fletcher v. Salvation Army Australia (Anti Discrimination) [2005] VCAT 1523 (1 August 2005); Bropho v. Human Rights and Equal Opportunity Commission [2004] FCAFC 16;

8.7 Fundamental Human Rights and Conscience

393

v. Lamb72 a pamphlet inferring that all Muslims were obliged to disobey the law of Australia was held to be permissible as it was published “in good faith”. In Francis v. YWCA Australia73 a complaint against the YWCA for selling and distributing T-shirts bearing the slogan ‘Mr Abbott, get your rosaries off my ovaries’ was dismissed: manifesting the organisation’s religious beliefs in that manner was construed as within the confines of free speech and insufficient to incite hatred of Catholics. In Evans v. NSW,74 however, the right to free speech was found to be obstructed by statutory provisions intended to prohibit the “annoying” of Roman Catholics participating in World Youth Day celebrations in 2008. When a protest becomes an incitement to hatred as in Menzies & Ors v. Owen,75 in which the court upheld a charge of publicly vilifying homosexuals, then it cannot claim the defence of free speech nor can it be defined as a conscientious objection. In Sisalem,76 a Muslim who claimed that a newspaper article constituted religious intolerance and vilification when it suggested, after the Paris attacks, that Islam needed to undergo fundamental change, had his claims dismissed. While his objections, grounded on his religious beliefs, may well have been conscientious, the court found that the article could not be shown to have generated the degree of hatred and contempt of Muslims necessary to negate the paper’s exercise of its right to free speech. The Threewisemonkeys77 decision is of some relevance as it illustrates a legal conflation of sexual orientation with religious belief, the weak constitutional protection afforded to religion and also indicates the difficulties presented by intransigent conflicting conscientious objections. The case concerned a pamphlet, published by a representative of an organisation known as the ‘Threewisemonkeys’, and distributed in the Sandy Bay area of Hobart in 2013. It stated that ‘homosexuality should not be tolerated’ and that ‘Scripture rejects homosexuality as utterly abominable’ and set out alleged statistics on lifespan expectations and causes of death for gay men and lesbians compared to heterosexual men and women. The complainant claimed that publishing and distributing this pamphlet constituted incitement to hatred on the grounds of sexual orientation under the Tasmanian Anti-Discrimination Act 1998, s.19, while the respondent claimed that such conduct was protected by the right to freedom of religion under s.116 of the Constitution. Both parties, arguably, were locked into reciprocal conscientious objections as each grounded their case on opposing belief systems. The court found that s.116:78

Judeh v. Jewish National Fund of Australia Inc [2003] VCAT 1254; and John Fairfax Publications Pty Ltd v. Kazak [2002] NSWADTAP 35. 72 [2001] QADT 20. 73 [2006] VCAT 2456. 74 [2008] FCAFC 130. 75 [2008] QADT 20, at para. 129. 76 Sisalem v. The Herald & Weekly Times Ltd, [2016] VCAT 1197. 77 Williams v. ‘Threewisemonkeys’ and Durston [2015] TASADT. 78 Ibid at para. 50.

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. . . does not amount to a complete guarantee of protection. In particular, it does not provide individuals with any avenue of legal redress if their perceived right to freedom of religion has been violated. In any event, any ‘freedom’ must be balanced against the rights of others, as is the case with the rights to freedom of speech and freedom of association. Accordingly, the Tribunal finds no basis for the respondent’s reliance on a right to freedom of religion by way of response or defence to this complaint.

The respondent’s defeat was due to his reliance upon the weak protection afforded by s.116.

8.7.1.1

Personal Identity Issues

As Neave JA has pointed out “attributing characteristics to people on the basis of their group membership is the essence of racial and religious prejudice and the discrimination which flows from it”.79 Such stereotyping—casual or vindictive— and in both instances often directed towards Indigenous people, has prompted many justifiable conscientious objections. Gender identity is one such aspect of group membership that has attracted stereotypying in Australia as it has elsewhere. Initially the courts looked for evidence of surgery for proof of a change in gender identity. The objections of the plaintiffs (probably not conscientious as such in the absence of a religion/belief dimension) in Re: Kevin and Jennifer v. Attorney-General for the Commonwealth,80 to being denied legal recognition of their marriage proved instrumental in promoting a review of the law. Justice Chisholm then endorsed the claim of Kevin (a ftm trans person) to be a man and to be in a lawful heterosexual marriage despite his not having fully completed the requisite surgical procedures. In reaching this decision, a persuasive factor for the judge was that Kevin’s male identity had been substantiated by others: Kevin was perceived to be, and was accepted as, a man by his family, friends and work colleagues; an approach subsequently followed by the HCA in AB v. Western Australia.81 The federal introduction of the Australian Government Guidelines on the Recognition of Sex and Gender Identity in 2013 dispensed with the need for evidence of hormonal or surgical treatment as a requirement for a gender recognition certificate.82 Consequently, in 2014 and 2016, the Australian Capital Territory and South Australia, respectively, passed legislation removing the surgery requirement as a condition for altering the gender identity as stated on a birth certificate.83

79

Catch the Fire Ministries v. Islamic Council of Victoria (2006) 15 VR 207, at 258. [2001] FamCA 1074 and (2001) FLC 93-087. 81 [2011] HCA 42. 82 See, further, at: https://www.ag.gov.au/Publications/Pages/ AustralianGovernmentGuidelinesontheRecognitionofSexandGender.aspx. 83 Note also G v. Australia CCPR/C/119/D/2172/2012, (2017). 80

8.7 Fundamental Human Rights and Conscience

395

Indigenous People Identity itself has long complicated the legal status of Indigenous people. From the time when Australia was designated ‘terra nullius’,84 through the decades of the ‘White Australia’ policy, until 1967 when they were first included in the national census and then onto the Mabo decision,85 the Indigenous people were not even recognised as citizens.86 Currently, Aboriginal and Torres Strait Islander Australians are neither recognised by nor specifically mentioned in the Australian Constitution. It might also be noted that the plaintiffs in Love v. Commonwealth; Thoms v. Commonwealth,87 although perhaps motivated less by conscientious objection than by fear of deportation, did succeed in winning a benchmark victory for Indigenous people in the court’s recognition that ‘an aboriginal Australian’ could not be defined as an ‘alien’ and was therefore ineligible for deportation.

8.7.1.2

Blasphemy and Proselytism

There are no longer any blasphemy laws as such in Australia. However, in three states—Tasmania, Queensland and Victoria—laws aimed at curbing “racial vilification” have been extended to include “religious vilification”. Proselytism, which often gives rise to conscientious objections, is permissible under Australian law as it is in other common law countries and has been defended in the HCA by Kirby J.88 It will gain further endorsement on the introduction of the pending Religious Discrimination legislation which provides legal protection for those expressing their religious beliefs. The Gaynor case,89 for example, concerned a proselytising army officer whose persistence in publicly expressing offensive views, claimed to be related to his Catholic religion, on matters such as LGBTI rights and Muslim extremists resulted in proceedings to terminate his commission. His conscientious objection to such action—grounded in a claim that his conduct was mandated by his religious beliefs—was treated with some scepticism by the court which nonetheless set aside the decision terminating his commission. Again, in Catch the Fire90 the publicly expressed offensive views of an evangelical Christian organisation— consisting largely of derisory comments about Muslims—were challenged by an

84

So designated by Cook in 1770—when there were some 750,000 Indigenous inhabitants - and meaning empty or no one’s land. 85 Mabo v. Queensland (No 2) [1992] HCA 23. 86 See, for example, Horne, D., The Lucky Country, 1964. 87 [2020] HCA 3. 88 See, NABD of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1; (2005) 79 ALJR 1142, at p.121. 89 Gaynor v. Chief of Defence Force (No 3) [2015] FCA 1370. 90 Catch the Fire Ministries Inc v. Islamic Council of Victoria Inc [2006] VSCA 284.

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Islamic organisation. Each party essentially rested its case on opposing conscientious objections to the other’s views as justified by reference to their respective beliefs. Vindicating the Christian organisation, the Court of Appeal found that the expression ‘on the grounds of religious belief’ in the Racial and Religious Tolerance Act 2001 (Vic) does not prohibit statements concerning religious beliefs per se, irrespective of whether they may offend or insult, the proscription is limited to instances of incitement.

8.7.1.3

Whistleblowers

Australia was at the forefront of developing whistleblower protections for public servants: South Australia passed its Whistleblower Protection Act in 1993. This is matched by a lack of cases in which whistleblowers have been successfully vindicated in the courts.91

Disclosures and the Law Legislative protection for whistleblowers is based on the premise that he or she is acting in the public interest. In most cases, this will require the matter to be raised in the first instance with their line manager, employer or regulator. Should they choose instead to make their disclosures directly to the media, in most cases they will forfeit any entitlement to legal protection. At the UN HRC Universal Periodic Review in 2021, Australia was criticised for the lack of legal safeguards available to protect the rights of journalists, whistleblowers, lawyers, activists, and others making disclosures in the public interest.

In a Public Service Context Those who made disclosures about matters relating to government service provision, and did so in the public interest, found protection mainly under the federal Public Interest Disclosure Act 2013, as subsequently amended92 and by the investigatory powers available to the Ombudsman under the Ombudsman Act 1976, s.5(1)(b). This legislation, counterbalanced by legislative constraints requiring employees not to disclose information obtained in connection with their employment, unless

91

Including the recent Alexiou v. Australia and New Zealand Banking Group Limited [2020] FCA 1777. 92 See, further, at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corpora tions_and_Financial_Services/WhistleblowerProtections/Report/c02.

8.7 Fundamental Human Rights and Conscience

397

authorised to do so,93 was found to have significant failings.94 The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 expanded the protection to those who pass on information about clients and employers where there is strong evidence of wrongdoing and provides for anonymity when reporting alleged misconduct. Nonetheless, a judge has called the new law “technical, obtuse and intractable” when presiding over a case of a security guard working for the Department of Parliamentary Services. The subject has attracted some academic interest.95 A report issued by Deakin university in 2020, revealed that more than half of environmental scientists working for Australian federal and state governments have been “prohibited from communicating scientific information”.96 It might be noted that the newly introduced mandatory reporting requirement in relation to suspected child abuse—including any such disclosure made to a priest in the course of confession—is in effect the opposite of whistleblowing. The conscientious objection of the Catholic Archbishop of Brisbane criticized the provision as making priests “less a servant of God than an agent of the State.”

In a National Security Context Church of Scientology Inc v. Woodward97 concerned advice supposedly given to government ministers by the Australian Security Intelligence Organisation (ASIO) claiming that certain persons employed or seeking employment in the Commonwealth posed a security risk due to their membership of the Church of Scientology. The plaintiff’s conscientious objection rested, in effect, on an argument that this amounted to the application of a ‘religious test’ by the ASIO. The court dismissed the application on a technicality of defective wording. More recently, there has been much media interest in the protracted and expensive proceedings brought by the government against Collaery, a barrister and former ACT attorney general, and his client Witness K, a former intelligence officer, in relation to their exposure of an Australian espionage operation against Timor-Leste during oil and gas negotiations in 2004.98 Essentially, in Australia as in the U.S., whistleblowers in a national security context tread a fine line if they are to prove that disclosures purportedly made in the public interest outweigh any associated national security risk. 93

See: the Public Service Regulations 1999, Reg 2.1; the Crimes Act 1914, s.70; and the Privacy Act 1988 (Cth), s.14. 94 See, independent statutory review of the Public Interest Disclosure Act 2013 (the Moss Review) 2016 at: https://www.ag.gov.au/about-us/publications/review-public-interest-disclosure-act-2013. 95 See, for example, Brown (2008), at: http://epress.anu.edu.au/whistleblowing_citation.html. 96 See, further, at: https://www.abc.net.au/news/science/2020-09-09/environment-scientists-cen sored-suppressed-data/12643824. 97 (1979) 154 CLR 79. See, also, Sykes v. Cleary (1992) 176 CLR 77 and Leghaei v. Director General of Security [2005] FCA 1576. 98 See, further, at: https://www.theguardian.com/australia-news/2020/aug/13/australian-govern ment-spends-almost-3m-waging-war-on-whistleblowers-in-court.

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Right to Freedom of Association/Assembly

There is no express constitutional right to freedom of association, but nonetheless its importance has been confirmed by the HCA99 and protection is ensured by recourse to international law (the ICCPR and the ICESR). As in other countries, this right is subject to statutes governing public order and safety. Parkinson is of the view that there is an undue tension between the freedoms of association and religion. He argues that faith-based organisations should have a right to select staff that fit with its values and mission, just as political parties, environmental groups and LGBTI organisations do.100

8.7.2.1

Corporate Entities

In Australia, a reference to the conscientious objection of corporate entities most often means the institutionalised negative response of religious organisations to matters perceived as non-compliant with their beliefs.101

8.7.3

Right to Freedom of Religion

Conscientious objectors have not fared well in the courts—as illustrated in the above caselaw102—when claimed to be made in support of religious freedom. This is due to the wide discretionary power available to the authorities; alluded to in Adelaide103 when the court claimed that they were “such as are reasonably necessary for the protection of the community and in the interests of social order”. In Grace Bible Church v. Reedman,104 for example, he court gave short shrift to the appellant’s claim that “there was an inalienable right to religious freedom”. Parliament, as White J commented, had “an absolute right to interfere with religious worship and the expression of religious beliefs at any time that it liked”105 and indeed had done so when the nation was at war as illustrated in the Jehovah’s Witnesses cases. One

99

Unions NSW v. New South Wales [2013] HCA 58. Parkinson, P., Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Interim Report 127), Submission 9. 2015. 101 See, for example, White et al. (2021). 102 Deen v. Lamb [2001] QADT 20, Francis v. YWCA Australia [2006] VCAT 2456 and Sisalem v. The Herald & Weekly Times Ltd, [2016] VCAT 1197. 103 Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth 11943167C.L. R. 116. 104 (1984) 54 ALR 571. 105 Ibid at p.385. See, also, ‘Religious Freedom Review’, Department of Prime Minister and Cabinet, (2018), at: https://pmc.gov.au/domestic-policy/religious-freedom-review. 100

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academic has claimed that “Australia has only relatively weak constitutional and legal protection of freedom of religion or belief and prohibition of discrimination on the basis of religion or belief”.106 This claim seemed to be endorsed by the Iliafi case,107 which concerned an internal dispute regarding language, when the full Federal Court confirmed that in such circumstances an individual’s freedom of religion was protected only by the right to leave the Church.108

8.7.3.1

Manifesting Beliefs

The right to manifest religious belief is constrained in at least two respects. Firstly, the action must be appropriately linked to the belief: clearly not all action taken by a religious person or organisation is necessarily related to, let alone a manifestation of their religious beliefs. As Dal Pont has expressed it:109 Importantly there must be a connection between a person’s belief in the supernatural and his or her conduct as a result of that belief. Conduct such as worship, teaching, propagation or observance is religious only if the motivation for engaging in it is religious.

Secondly, any such action must be proportionate, comply with freedom of speech standards and be respectful of the rights of others. As Hampel J noted in Cobaw,110 the right to hold a belief is broader than the right to act upon it. In particular, she emphasised that the right to freedom of religious belief does not confer a right on members of a religion to impose their beliefs on a secular society.111 Clearly, while the right to so manifest incorporates a right to cause offence when doing so—this must not be exercised to the point where it becomes vilification. Latham CJ, in Adelaide Company of Jehovah’s Witnesses Inc v. Commonwealth,112 was certain that s.116 protection extended beyond holding beliefs to include their manifestation, as were Mason ACJ and Brennan J in Church of the New Faith v. Commissioner of Pay-roll Tax (Vic).113 The protracted 2004 controversy over the building of a mosque in Bendigo county Victoria provides a good illustration of the general give-and-take approach to overt expressions of religious differences in this very pluralist society; it was resolved without any need for judicial involvement. In Catch the Fire Ministries Inc v. Islamic Council

106

Evans (2009), p.8. Iliafi v. The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26. 108 Ibid at pp. 85–86. 109 Dal Pont (2000), p. 149. 110 Ibid, citing both s.14 of the Charter and Art 18 of the ICCPR. Endorsed by the Victorian Court of Appeal in Christian Youth Camps Limited & Ors v. Cobaw Community Health Services Limited & Ors [2014] VSCA 75. 111 Citing Laws J in McFarlane v. Relate Avon Limited [2010] EWCA Civ B1. 112 (1943) 67 CLR 116, 124. 113 (1983) 154 CLR 120, 135. 107

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of Victoria Inc114 the Victorian Court of Appeal considered whether the conduct of Catch the Fire Ministries, an evangelical religious organisation, contravened s.8 of the Racial and Religious Tolerance Act 2001 (Vic). The conduct concerned statements made at a seminar in 2002, in a newsletter in 2001 and in an article on their website in 2001 that may well have provoked conscientious objections from Muslims, including: the Koran promotes violence and killing; the Koran teaches that women are of little value; Allah is not merciful; that Muslims practising Jihad are following the Koran and a number of other similar statements. The ruling that there had been no incitement to hatred of Muslims because of their faith—as opposed to possible hatred of the religious beliefs of Muslims—(a distinction the significance of which may not be readily apparent to Muslims) seems to place a high value on the importance of freedom of speech relative to consientious objection.115 Not dissimilarly, in Adelaide Preachers,116 the HCA upheld the validity of a local by-law that prohibited “preaching, canvassing and haranguing” in a public place without a license from the city; adding that it did not breach any right to free speech under s.116.

Religion Specific Clothing, Symbols, Customs Etc As a general rule there is no restriction on the public wearing of religious apparel unless doing so constitutes a safety hazard or confirmation of personal identity is required. Unusually, there would seem to be a dearth of caselaw relating to such matters, an exception being Elzahed v. State of New South Wales117 which concerned the conscientious objection of a Muslim plaintiff to removing the veil covering her face on the grounds that to do so would violate her religious belief. The Court of Appeal upheld the earlier ruling of Balla J that the Muslim plaintiff was not entitled to keep her face covered while testifying, as the judge could not be “completely deprived of having the assistance of seeing her face to assess her credibility. . .”.

8.7.3.2

Indigenous Beliefs

For Indigenous people, recognition of their distinctive ethnicity and culture is particularly important and—as mentioned above—this has occasionally been

114

[2006] VSCA 284. See, further, Parkinson, P., ‘Enforcing Tolerance: Vilification Laws and Religious Freedom in Australia’, 2005, at: http://sydneyanglicans.net/blogs/indepth/enforcing_tolerance_patrick_ parkinson. 116 Attorney-General (SA) v. Corporation of the City of Adelaide [2013] HCA 3. 117 [2018] NSWCA 103. 115

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acknowledged: in relation to “the Nyungah elders”118 and “the Ngarrindjeri people”.119 In Kruger v. Commonwealth,120 Gaudron J alluded to the parallels between the beliefs of Indigenous people and those of more orthodox religious adherents when, in considering whether the removal of Aboriginal children breached s.116, she stated that “the Aboriginal people of the Northern Territory, or at least some of them, had beliefs or practices which are properly classified as a religion”. This was endorsed by Toohey J, her colleague on the bench, who in relation to the State sanctioned removal of children commented that “it may well be that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory”.121 Given that the beliefs of the Indigenous people have a significance that has been judicially noted as corresponding to that of religion, and recognising that those beliefs are often represented in the topographical features of the land they have occupied for millenia, it is not too much of a stretch to suggest that the intrusion inflicted by the granting of mining rights often represents a violation of those beliefs and consequently their response is—in part—one of conscientious objection. Again, as implied by Toohey J, the removal of their children in the tragic episode that has since become known as ‘the Stolen Generation’ could also—in part—be viewed as a violation of beliefs and thus their response construed as one of conscientious objection; which is not to distract from the devastating intergenerational impact of that event on the families, community and cultural integrity.

Affirmative Action This term—or ‘positive discrimination’, ‘positive measures’ or ‘special measures’— refers to action taken that aims to foster equality by providing targeted support to offset the particular disadvantages suffered by certain specific groups. An anomalous instance of what might be construed as ‘positive action’ was the subject of judicial scrutiny in Kay v. South Eastern Sydney Area Health Service122 which concerned a fund for the treatment of white babies. The court ultimately upheld the fund as charitable on grounds that included the rather facile rationale that “the receipt of a fund to benefit white babies would just mean that more of the general funds of the hospital would be available to treat non-white babies so that, in due course, despite the testatrix’s intention things will even up”. The inference being that an affirmative action deliberately intended not to benefit Indigenous babies—and for that reason

118

Wanjurri v. Southern Cross Broadcasting (Aus) Ltd (2001) EOC 93-147, per Commissioner Innes. 119 Aboriginal Legal Rights Movement Inc v. State of South Australia and Iris Eliza Stevens (1995) 64 SASR 551, per Doyle CJ at pp. 552–553. 120 See, (1997) 190 CLR 1. 121 Ibid, at p. 86. 122 [2003] NSWSC 292.

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seemingly constituting a legitimate target for conscientious objection—would end up doing so anyway.

8.8

Conscientious Objection and Equality: Contemporary Caselaw

The statutory exemptions from equality and non-discrimination legislation enabling religious organisations and their public benefit service facilities—schools, hospitals, social care units—even when in receipt of government funds, to discriminate in staffing and service access arrangement constitutes both a form of conscientious objection and a target for such objections from others. This situation will be considerably exacerbated by the provisions of the pending Religious Discrimination Bill 2019. The declared legislative intent of the Bill is to prohibit religious discrimination but in practice it will licence religious bodies to conduct their activities in accordance with the beliefs of their particular religion: ‘religious bodies’, for this purpose, is taken to mean educational institutions (schools and universities), public benevolent institutions and any other body which does not engage solely or primarily in commercial activities (but may do so to a considerable extent). It will allow the conscientious objections of service providers to prevail across all areas of provision—employment, health care and education—exempting them from meeting the needs of service users on the basis of their non-compliance with the provider’s beliefs. This legislation will also provide protection for individuals against allegations of discrimination when taking decisions on the grounds of their religious belief, in the context of areas such as employment, education, access to premises, provision of goods and services and accommodation.

8.8.1

Public Health

As a signatory nation to the UDHR, ICESRC, CEDAW and UN CRC, Australia is bound to respect and deliver on the right to health care proclaimed in these international instruments. However, this is constrained by the fact that—as in Ireland— religious organisations continue to dominate public benefit service provision, acting as government funded service providers across many sectors in all Australian jurisdictions. Those constraints are likely to be tightened by the proposed Religious Freedom legislation. Religious organisations are responsible for the largest non-government grouping of hospitals, facilities for the aged and community care services. They often institutionalise conscientious objection by choosing not to be providers of particular healthcare services due to a perceived necessity to “preserve or maintain moral

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integrity”.123 Their right to do so is recognised in the Marriage Amendment (Definition and Religious Freedoms) Act 2017 which, in keeping with the Sex Discrimination Act 1984, exempts such organisations from providing facilities, goods or services if to do so would compromise either their beliefs or those of their religious communities.124 The discretion of such organisations was restricted to some extent by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 which imposed certain constraints on their capacity to deny service provision on grounds of a conflict with religious beliefs. Care homes owned by such organisations, for example, are no longer able to exclude people from aged care services based on their LGBTI or same-sex relationship status. However, in practice Catholic hospitals across Australia remain free not to conduct vasectomies, tubal ligation and abortions; while family planning services provided by religious organisations, even if receiving government funding, provide advice and information that excludes access to contraception or abortion. The Religious Discrimination Bill 2019, ss.8(6) and 8(7), establishes a right of exemption for those health practitioners who conscientiously object to providing or participating in a particular kind of health service on the basis of their religious beliefs.125 This will limit the scope of conscientious objection by requiring it to be restricted to type of service rather than to type of person (i.e. a blanket objection to those perceived as having SOGI related issues would be invalid). Muslim, Jewish or Christian service providers, however, may conscientiously object to facilitating service access to abortion or medically assisted death. The exemption is made subject to the provsion that it would not result in an ‘unjustifiable adverse impact’: a foreseeable adverse impact being presumably permissible if the objector considers this to be justified. The Australian Human Rights Institute points out that these provisions disproportionately affect women as many services—such as long-term contraception, emergency contraception, abortion, and fertility treatments—are needed by women and are regularly objected to on religious grounds.126

8.8.1.1

Abortion, Contraception IVF and Surrogacy

The strong Christian cultural heritage, together with the more recent influx of Muslim immigrants, provides a fertile ground for generating conscientious objections in relation to all aspects of family planning and reproductive procedures. 123

Wicclair (2000), p. 205, 213. The Sex Discrimination Act 1984, s.38, ties the exemption to the ‘doctrines, tenets, beliefs or teachings of a particular religion or creed’; thereby narrowing its ambit of application. 125 Exemption is also provided by the Australian Medical Association which formally recognises the right to of doctors to conscientiously object to procedures that are contrary to their “sincerely held beliefs and moral concerns”. See, AMA, ‘Position Paper on Conscientious Objection’ at: https://ama.com.au/position-statement/conscientious-objection-2019. 126 See, further, at: https://www.humanrights.unsw.edu.au/news/four-ways-religious-discrimina tion-bill-impacts-womens-reproductive-rights. 124

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Abortion Abortion is available in all Australian states though there is significant variation between its legal status, barriers to access and geographical availability. There is variation also in the right of medical practitioners to claim exemption on the grounds of conscientious objection: in six jurisdictions this right to conscientiously object, while legally recognised, is conditional: in Victoria, South Australia, Tasmania and the Northern Territory, doctors are legally required to provide an abortion service in circumstances where a pregnant woman’s life is in danger, regardless of any conscientious objection they may have; in the Northern Territory and Victoria, provision is made for the conscientious objection of health practitioners but they are obliged to declare their objection and then refer women to an alternative provider who they know does not have a conscientious objection, which can be problematic as this obliges them to remain complicit in facilitating the abortion process. In Victoria, the Abortion Law Reform Act 2008, s.8, requires medical practitioners to neither register their objections in advance, nor to subsequently justify it. To complicate matters further the Australian Medical Association advises that a doctor with a conscientious objection, should:127 • inform the patient of their objection, preferably in advance or as soon as practicable; • inform the patient that they have the right to see another doctor and ensure the patient has sufficient information to enable them to exercise that right; • take whatever steps are necessary to ensure the patient’s access to care is not impeded; • continue to treat the patient with dignity and respect, even if the doctor objects to the treatment or procedure the patient is seeking; • continue to provide other care to the patient, if they wish; • refrain from expressing their own personal beliefs to the patient in a way that may cause them distress; • inform their employer, or prospective employer, of their conscientious objection and discuss with their employer how they can practice in accordance with their beliefs without compromising patient care or placing a burden on their colleagues. In Australia, as in many other countries, the legal right to conscientiously object is not restricted to medical staff: there is also a public right to manifest such an objection. The latter right has recently been restricted by the introduction of “protest free zones” in a number of states and territories, to exclude anti-abortion activity within 50 m of a clinic which have triggered conscientious objections from pro-life protestors.128

127 128

Ibid, at para 2.3. See, Clubb v. Edwards and Preston v. Avery [2019] HCA 11.

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While the exemption privilege is available to doctors in some states and territories, it is a focus for conscientious objection in all.129 The objectors are often members of the public as in Fraser v. Walker,130 for example, when a protestor exhibited a poster, featuring pictures of aborted foetuses, outside an abortion clinic in Melbourne and was convicted of “displaying an obscene figure in a public place”. The court summarily dismissed any suggestion that the protest constituted a justifiable conscientious objection: “assuming the appellant’s stance on abortion comes from her religious belief, the display of obscene figures is not part of religion nor can it be said the display is done in furtherance of religion”.131

Contraception The scope for doctors’ conscientious objections to the provision of abortion services has narrowed—and become more morally complex—following the legal availability of RU-486 (an abortifacient).132 It has also drawn pharamacists into the same contentious arena. The 2019 Bill will potentially expand the scope for conscientious objections from pharamacists by including those who decline to provide services for unmarried mothers, trans persons, same sex couples and any others who are perceived as non-compliant with the pharmacist’s religious beliefs.

IVF and Surrogacy Commercial surrogacy is banned nationwide although surrogacy is legal on an altruistic basis within all Australian jurisdictions—except Western Australia (where it is illegal for singles and same-sex couples). The not unrelated recent upsurge in recourse to overseas surrogacy arrangements has created some unique legal concerns with respect to citizenship, parenting rights133 and led to several cases of disputed parental rights resulting from IVF and surrogacy arrangements.134 The amendment of s.60H of the Family Law Act 1975 (Cth) to provide legal parentage status for non-biological parents in same sex relationships was both the cause and effect of conscientious objections relating to the traditional religious interpretation of ‘parent’. Again, the 2019 Bill will permit the conscientious objections of religious health service providers to restrict opportunities for those who wish to become parents through means judged to be non-compliant with the provider’s beliefs.

129

See, further, Rodger and Blackshaw (2021), pp. 154–169. [2015] VCC 1911. 131 Ibid at para. 49. 132 Now more commonly known as MS-2 Step (MS Health Pty Ltd). 133 Re Michael (Surrogacy Arrangements), (2009) 41 Fam LR 694. 134 For example, Re Patrick (2002) 28 Fam LR 579; FLC 93-096 and Re Mark (2003) 31 Fam LR 162; [2003] FamCA 822. 130

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SOGI Related Health Issues The long established and much criticized Australian practice of surgical intervention to “correct” physiological anomalies in small children, often involving their sterilization, has been a focus for conscientious objections. Such intervention achieves physical gender alignment but only by reducing a complex psychosocial matter of sexual identity to a simple one of surgically induced gender conformity: with all the eugenic connotations of enforced engineering; on the authorisation of parents but not necessarily with the consent of the child. In 2013, the Australian Senate published a report which condemned the practice of “normalising” surgeries and made 15 recommendations, including ending cosmetic genital surgery on infants and children and providing for legal oversight of individual cases.135 Australia’s reputation of being the only nation in the world that required transgender teenagers to get court authorisation before they could start taking transitioning drugs,136 usually around the age of 15, came to an end in November 2017 with the decision of the court in Re Kelvin, a Gillick competent 17 year old with parental consent who objected to the need for court authorisation to proceed with treatment.137

8.8.1.2

Medical Practitioners and Assisted Death

As of 2021, medically assisted death is lawful in Victoria and Western Australia, is due to be introduced in Tasmania, but is illegal in all other states and territories.

Suicide The de-criminalisation of suicide is well established throughout Australia, in most states and territories this has been the case for at least a century. However, conscientious objection to allowing a person suffering from a terminal illness to end their own life is inhibited by the fact that it remains a crime to counsel, incite, or aid and abet another to attempt suicide.

135 See, The Senate: Community Affairs Reference Committee, ‘Involuntary or coerced sterilisation of intersex people in Australia’, October 2013, at: http://www.aph.gov.au/~/media/Committees/ Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx. 136 Between 2013 and 2017 the Family Court dealt with 63 cases involving applications for either stage 2 or stage 3 treatment for Gender Dysphoria and approved all but one. 137 [2017] FamCAFC 258.

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Refusing Medical Treatment Australia, in keeping with many other countries, permits the withholding of lifesustaining medical treatment unless the patient is deemed mentally incapable of consent,138 and respects an ‘advance directive’ given by an adult refusing medical intervention,139 but allows health authorities to apply for a court order to overrule a parental veto on the provision of treatment for their child. The Supreme Court (WA) recently ruled that staff at the Princess Margaret Hospital for Children, could give a teenage cancer patient blood transfusions, despite the conscientious objection of parents on religious grounds. The same rationale was applied in X v. the Sydney Children’s Hospital Network140 to dismiss an appeal in respect of a parental refusal to permit intense chemotherapy for a child suffering from Hodgkin's disease because it would probably lead to a blood transfusion contrary to their religious beliefs. This principle was also in play in 2015, when the federal government terminated the long-standing exemption enjoyed by some religious groups—most notably the Christian Scientists—from national child vaccination programmes on the basis of conscientious objection.

Medically Assisted Death In 2019, following considerable caselaw,141 the Voluntary Assisted Dying Act 2017 (Victoria) came into effect with provision under s.7 for the exemption of medical practitioners, to be followed by similar legislation in Western Australia in 2019 and Tasmania in 2021.142 All such legislation provides for conscientious objections by individual health professionals. As the Australian Medical Association points out, in addition to the right of individual medical practitioners to be exempted from facilitating a medically assisted death on the grounds of conscientious objection there are situations of “institutionalised conscientious objection” resulting from the refusal of facilities provided by religious organisations to accommodate this service. These include hospitals, residential aged care facilities, hospices and other long or short-term care facilities. Catholic Health Australia, for example, being the largest non-governmental grouping of hospitals and aged care providers in Australia, will not provide it in any of its facilities. Many other facilities owned by religious

138

See, Australian Capital Territory v. JT [2009] ACTSC 105. See, Qumsieh v. GAB (1998) 14 VAR 46. 140 [2013] NSWCA 320 141 Including: R v. Adams (Bodkin) (Unreported), Central Criminal Court, (1957); R v. Cox (1992) 12 BMLR 38; R v. Justins [2011] NSWSC 568; R v. Klinkermann [2013] VSC 65; R v. Dowdle [2018] NSWSC 240; and Police v. O (2019). 142 South Australia, Queensland and New South Wales are due to follow with similar legislation in 2021-2. 139

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organisations—Muslims, Jews, Presbyterians, Anglicans and Baptists—have similar policies which in practice can be a serious constraint as they may be the sole possible service providers in a particular geographic area. The Association advises that when, for example, a hospice patient requests access to a voluntary assisted dying service, which is unavailable due to the facility’s conscientious objection, then “doctors should be allowed to refer patients seeking such a service to another doctor outside the facility”.143

8.8.1.3

Blood and Organ Donations

The Therapeutic Goods Administration review of blood donor rules in 2020 changed the 12 month deferral, from date of last sexual relationship, for donations from gay men. This unusually long deferral period had been challenged as discriminatory, given the sophisticated techniques now available to screen samples and the realiability rate of detection for HIV antibodies whether or not the donor is of LGBT status. From 2021 the deferral is reduced to three months since the last sexual contact; a condition similar to that imposed in the U.K. and the U.S. and regarded as continuing the discriminatory treatment of the LGBT community. It might be added that the relaxing of these rules in those countries has itself been a focus for protest from some who conscientiously object on religious grounds to the public health services receiving blood from such a source.

8.8.1.4

Vaccination

Historically, there has never been a federal law mandating vaccination for any specific disease or group of people. In the years immediately preceding the onset of the covid pandemic, a high level of vaccination refusal and hesitancy had resulted in significant numbers of non-vaccinated children and an associated rise in preventable childhood illnesses. Conscientious objectors had been at the forefront on both sides of the public debate as to whether or not there should be mandatory vaccination for all children144 before government policy at federal and state levels began changing to impose restictions on the traditional exemption privilege. At federal level, the parental right to conscientiously object was removed and in 2015 it was replaced by ‘No Jab No Pay’ legislation which imposed penalties by witholding certain welfare payments (Child Care Benefit, the Child Care Rebate and, as of 2018, parts of the Family Tax Benefit), normally payable to parents in respect of children under 20 years of age, if the latter were not fully immunised or on a recognised

See, AMA, ‘Position Paper on Conscientious Objection’, para 3.2, at: https://ama.com.au/ position-statement/conscientious-objection-2019. 144 See, for example, the campaign for compulsory vaccination led by the families of Riley Hughes and Dana McCaffery (infants who died of pertussis), and against led by Stephanie Messenger. 143

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catch-up schedule. At state level, ‘No Jab No Play’ legislation replaced the conscientious objection privilege in New South Wales, Queensland and Victoria in 2017 and subsequently in Western Australia and South Australia.145 It imposed fines on childcare centres that admit unvaccinated children. Both sets of initiatives resulted in a significant increase in immunised children but also in protests against the morality of penalising the socially disadvantaged by making their access to universal public benefits conditional upon compliance with a coercive government policy.

Law, Government and Vaccination in the Covid 19 Pandemic Federal policy towards vaccination has recently changed and some states and territories have independently initiated legislation. In 2018, for example, New South Wales introduced an amendment to the Public Health Act 2010 which removed the right of conscientious objecting parents to prevent the participation of their children in mandatory vaccination programmes. Since then, parents who were previously entitled to State respect for the right to conscientiously object have instead been criminalised. These recent initiatives at federal and state levels to remove the right to conscientious objection in respect of public health vaccination programmes have attracted considerable debate146 and have transformed an aspect of the State/citizen relationship with implications for its future in a pandemic context and more broadly for democratic society.

8.8.2

Social Care Services

This sector, already impacted by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, awaits the introduction of the long pending Religious Discrimination Bill 2019.

8.8.2.1

Adoption and Foster Care

By far the highest proportion of ‘known’ adoptions in Australia (67% in 2018–2019) are in favour of carers, usually foster parents, which means that the initial placement decision is crucial to facilitating an eventual adoption. This can be obstructed when religious adoption agencies filter out foster carers because the latter are perceived as being in breach of the agency’s religious beliefs: a confrontation that could be construed as one resting on mutually implacable conscientious objections.

145 146

See, further, at: https://www.ncirs.org.au/public/no-jab-no-play-no-jab-no-pay. See, for example, Li and Toll (2021).

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In March 2013, following publication of the ‘Forced Adoption’ report, the government led by Prime Minister Julia Gillard delivered an historic national apology in Parliament to the thousands of unwed mothers who were forced by government policies to give up their babies for adoption—the so-called ‘white stolen generation’147—during the period 1940–1980.148 It echoed the earlier similar apology offered in respect of “the stolen generation” of Indigenous children. Both sets of official apologies could be viewed as representing national expressions of conscientious objection to phenomena caused by a value system—underpinned by religious beliefs and often implemented by religious organisations—now seen as repugnant. The apologies sought closure on a social policy governing the use of adoption that at that time had been deeply flawed.149

Service Refusal OV and OW150 concerned the refusal of Wesley Mission to accept a same-sex couple as foster carers, on the grounds that its religious beliefs would be breached if it treated them the same as it did those whose status complied with the core Wesleyan doctrine of ‘monogamous heterosexual partnership within marriage’. Ultimately, the court found that the Wesley Mission was able to refute the couple’s conscientious objection to being discriminated against on religious grounds. The Mission was entitled to avail of the statutory religious exemption as, at the relevant time, its doctrines were binding upon it and could be construed as religious.

8.8.2.2

Social Care Facilities and Benefits

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 has imposed constraints on the discretion of religious organisations to deny service provision on grounds of a conflict with religious beliefs. Care homes owned by such organisations are no longer able to exclude

147

See, further, at: https://www.smh.com.au/politics/federal/white-mothers-of-stolen-children-alsodeserve-an-apology-20101207-18o7t.html. 148 See, further, at: http://www.huffingtonpost.com/2013/03/22/julia-gillard-australia-apologizesfor-forced-adoption_n_2932710.html. 149 For example: 2012, Australia Senate Community Affairs References Committee, The Commonwealth Contribution to Former Forced Adoption Policies and Practices; 2004, Senate Community Affairs References Committee, Forgotten Australians: A Report on Australians who Experienced Institutional or Out-of-Home Care as Children; 2000, Parliament of New South Wales, Legislative Council, Standing Committee on Social Issues, Releasing the Past: Adoption Practices 1950-1998; and 1997, the Australian Human Rights Commission report, Bringing them Home. 150 OV v. QZ (No 2) [2008] NSWADT 115; Member of the Board of the Wesley Mission Council v. OV and OW (No 2) [2009] NSWADTAP 57; OV & OW v. Members of the Board of the Wesley Mission Council [2010] NSWCA 155.

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people from aged care services based on their LGBTI or same-sex relationship status. The Religious Discrimination Bill 2019 together with Bill of Rights Bill 2019 will, in theory, extend such constraints. The Australian—still pending—promises to give effect to certain provisions of the ICCPR, the ICESCR, the UN CRC and other international instruments.

8.8.2.3

Public Officials: Marriage Registrars Etc

Those in public office or employed in a public service delivery role are clearly under a stronger obligation than others to ensure they comply with the laws relating to equality and non-discrimination. Unless expressly exempted, there is little scope for reliance on conscientious objection to excuse a refusal to perform contractual duties.

Marriage Registrars The Marriage Amendment (Definition and Religious Freedoms) Act 2017 provides an exemption for civil marriage celebrants allowing them to refuse to marry samesex couples and exempts religious bodies—such as churches and religious schools— from providing services to any wedding if this would be incompatible with their “conscientious or religious beliefs”.

Other Public Officials The swearing of oaths as a requirement for taking public office has often attracted conscientious objections. Under the Constitution Act 1902, s.42, an elected representative to the Federal Parliament is required to swear an oath or affirm their allegiance to Queen Elizabeth II and her heirs and successors before they can take their seat in Parliament. This requirement has been part of the constitution and parliamentary process since Federation,151 despite several parliamentary inquiries recommending a referendum to amend it. In the one recorded case concerning the taking of an oath as a requirement for public office this was found to breach the s.116 assurance that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”. The requirement was held to constitute an interference with the free exercise of religion.152

151

Amended by the Oaths of Allegiance Bill 2011, to allow the option of making an affirmation of allegiance to Her Majesty Queen Elizabeth II, her heirs and successors. 152 R v. Winneke; Ex parte Gallagher (1982) 152 CLR 211.

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8 Australia

Public Education

A primary area of concern in the Australian education system relates to the degree to which religion—specifically Christianity—is involved in State schools. The concern is perhaps most acute in regard to the right of government funded religious schools—there are more than 760,000 pupils in such schools—in an increasingly religiously diverse and secular society, to claim exemption from religious discrimination laws. This privilege inevitably brings greater benefits to the established Christian religious organisations relative to all others and equally inevitably is a focus for the conscientious objections of those others. The relevant legislative framework is largely provided by the Schools Assistance Act 2008 (Cth) and the Australian Education Act 2013 (Cth).

8.8.3.1

Schools, Teachers and Parents

The National School Chaplaincy Programme has been the subject of sustained conscientious objections from many quarters but from one litigant in particular. Introduced in 2007, by 2016 it was using some $60 million of federal public funds per annum to provide a school chaplaincy service—“a chaplain is an individual who is recognised through formal ordination, commissioning, recognised religious qualifications or endorsement by a recognised or accepted religious institution”153—to nearly 3000 schools across Australia. Debate has centred on the provision of a service that is: religious (no equivalent secular service is available); almost exclusively Christian (no other religions are represented); employing qualified religious personnel from Christian organisations such as Scripture Union who provide evangelical programs and activities such as Bible Clubs; delivered in the main to public schools; and which is paid for by taxpayers, some of whom are atheists, agnostics or belong to non-Christian religions, and many of whom argue that schools should be strictly secular. In Williams (1)154 the plaintiff conscientiously objected to the constitutionality of the programme on the grounds that he had a right to secure a secular education for his children. The High Court held that while the chaplaincy program was not in breach of the s.116 religious test, the Commonwealth’s funding arrangements were unauthorized by statute and therefore unconstitutional. Within days of the decision the Commonwealth Parliament passed the Financial Framework Legislation Amendment Act (No 3) 2012 (CT), which sought to regularise the funding arrangements and secure the national network of chaplaincy posts, but this was challenged by the plaintiff in Williams (II)155 and again the court found the funding arrangements to be unconstitutional, though this time on the more fundamental grounds that the 153

As defined in the Project Agreement for the National School Chaplaincy Programme, 2014. Williams v. the Commonwealth of Australia [2012] HCA 23. 155 Williams v. Commonwealth of Australia [2014] HCA 23. 154

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statutory provisions purporting to authorise the programme were invalid because they did not fall within any of the Commonwealth’s legislative powers. Since then the programme has been centrally funded by the federal government to enable all states and territories to place and administer chaplains in public and private schools. The consistent rejection of the plaintiff’s conscientious objection has served to demonstrate the federal government’s overt endorsement for the public funding of a religious input—specifically Christianity—to the State school system. In so doing it discloses the systemic nature of the State/Church relationship and reveals the corresponding scope for conscientiously objections to an arrangement seen as prejudicial to those of other religions and to those of none.

Religion Specific Clothing: Teachers The wearing of specific clothing, or other such indicators of religious adherence, is often both a self-affirming act of religious identity and/or a private protest against the neutral anonymity of the public environment. When that environment is a workplace and it proves unaccommodating, those with a need to publicly manifest their religious adherence may then feel obliged to stand their ground in a gesture of conscientious objection. This would seem to have been the case in T v. Dept of Education (Vic)156 and in Kapoor v. Monash University157 when the plaintiff teachers, a Sikh and a Hindu respectively, were both the subject of ridicule and harrassment by their pupils and ultimately their employment contracts were terminated or not renewed because their employers took the view that their appearance and communication skills undermined their teaching capacity. The plaintiffs conscientiously objected on the grounds that their mode of dress was a requirement of their respective religions but ultimately their claims of religious discrimination were unsuccessful, at least in part, because the Victorian legislation forced the issues to be determined on the basis of ethnicity/race rather than religion.

Religion Specific Clothing: Pupils The 2017 landmark case of Arora v. Melton Christian College158 concerned the conscientious objection of a Sikh father to the refusal of Melton College to admit his five-year-old son because the boy would be wearing a turban as required by his religion. The Victorian Administrative and Civil Tribunal (VCAT) found that the school’s “uniform policy in so far as it prohibits headgear of a non-Christian faith, could be described as openly discriminatory” and thereby breached the Equal Opportunity Act 2010. It concluded that it was “not reasonable to accept enrolment 156

[1997] HREOC 38. (1999) EOC 92-971 (VCAT). 158 (2016) H2207 (VCAT). 157

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applications from students of non-Christian faiths only on condition that they do not look like they practise a non-Christian religion”. Following the ruling, Melton College amended its school uniform policy to allow exceptions where genuine medical or religious grounds exist. The case can be seen as setting a benchmark for ensuring school uniform policy is compliant with equality legislation across Australia.

Prayers, Symbols and Religious Ceremonies Etc A obo V and A v. NSW Department of School Education159 concerned a Jewish father’s conscientious objection to the Christian ethos and regime imposed in the State school attended by his children. He alleged that the mandatory participation of pupils in or exposure to school prayers, religious icons, Christmas and Easter activities etc violated the family’s religious beliefs. The regulatory Tribunal disagreed. Drawing a distinction between religion and ethnicity, it held that the father’s objection, purportedly based on religious belief, was in fact grounded in his ethnicity. Arguably, while this rationale is sufficient—perhaps—to disqualify the complaint from satisfying the statutory grounds for religious discrimination, it leaves intact the status of the complainant as a conscientious objector: the beliefs/conscience necessary to sustain the latter are broader and unconstrained by considerations of ethnicity or doctrine.160 That the option to withdraw a child from scripture classes may not resolve this issue was demonstrated in The State of Victoria, Department of Education & Early Childhood Development (Anti-Discrimination)161 when parents conscientiously objected to such a ‘singling out’ claiming that this would also give rise to religious discrimination; their claim was rejected on the somewhat doubtful grounds that there was no evidence of adverse impact upon the children.

Indigenous Children Issues Affirmative action, in terms of educational policy, programs and services has been pursued by government, with some success, in a strategy to ‘close the gap’ between Indigenous and non-Indigenous educational achievement. Nonetheless, school attendance rates for Indigenous pupils—and skill attainment levels in numeracy and reading—remain lower than for others, particularly in the Northern Territory.162

159

[2000] NSWADTAP 14. See, also, T v. Department of Education (Vic) [1997] HREOC 38 and Kapoor v. Monash University (1999) EOC ¶92-971 (VCAT). 161 [2012] VCAT 1547. 162 See, https://www.aihw.gov.au/reports/australias-welfare/indigenous-education-and-skills. 160

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SOGI Related Issues Creating and sustaining an educational environment that welcomes diversity and encourages inclusivity is essential in a multicultural society such as Australia. However, the education sector contains a high proportion of religious-based institutions which are permitted, under s.37 and s.38(3) of the Sex Discrimination Act 1984, to discriminate against staff and students on SOGI related grounds provided this is done “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion”. The extent to which they can do so varies across the states and territories according to the governing legislation; some, notably Tasmania do not permit exemptions, while in others like Western Australia they are narrowly defined. The long-time pending Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 together with the Equal Opportunity (Religious Bodies) Amendment Bill 2020 and other planned reforms will in due course introduce constraints to the privileged position of religious organisations, and to their current leverage in the national education system, which must correspondingly reduce the flow of related conscientious objections.163 The efforts of Safe Schools Coalition Australia to introduce a nationwide programme offering guidance on how to combat anti-LGBTI abuse or bullying has generated much controversy. Christian organisations have lobbied, sometimes successfully, for the use of conceptual material relating to gender and sexuality to be prohibited in primary schools.164

8.8.3.2

Educational Content

Given the high proportion of Christian schools in the public school system and the many others permeated by a traditional religious ethos, it is unsurprising that tensions exist between a need to ensure educational content takes account of its religious constituency while remaining compliant with equality and non-discrimination legislation. There are considerable challenges in tailoring educational material so that it is representative of the cultural mores of this diverse society and inclusive of those of the Indigenous people.

SOGI Related Curriculum Content Government policy at federal, state and territory levels requires issues relating to the SOGI/equality law relationship to form part of the curriculum content of all facilities

See, further, the Human Rights Law Centre, ‘Getting the balance right: Submission on the Religious Discrimination Bill’ at: https://www.hrlc.org.au/submissions/2019/11/27/submission-onthe-religious-discrimination-bill- getting-the-balance-right. 164 See, Ullman and Ferfolja (2016). 163

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in the public education system; although religious schools continue their traditional discretion to filter material and staffing as necessary to ensure compliance with religious beliefs. As in the UK, the many conscientiously driven objections— particularly as regards the inclusion of SOGI related content in primary school curricula content—have yet to lead to court cases.

8.8.3.3

Faith Schools

Faith schools in Australia, though not a distinct category outside the public education system, nonetheless maintain their religious access filters and are exempt from gender identity and sexual orientation provisions: they are free to require religious affiliation when employing staff and enrolling students; and can integrate theories such as ‘creationism’ into the school curriculum. In the landmark case of Attorney-General (vic) (Ex rel Black) v. Commonwealth,165 a precursor to the above Williams litigation, the similarly motivated plaintiffs sought a court order declaring that State funding of Church schools amounted to establishing a religion contrary to s.116. This was rejected on the grounds that s.116 does not prevent the “giving of aid to or encouragement of religion” and therefore could not prevent the government from providing financial assistance to schools operated by religious organisations on the same basis as that assistance was provided to other private schools. Such funding was deemed constitutionally compliant because it was intended for educational rather than religious purposes. A decade later, in the Christian Family Schools case, the court responded to a group of parents equally conscientiously committed to the opposite view: protesting that the public school system did not sufficiently accommodate their religious beliefs; and consequently they were forced into having their children schooled outside that system. While the court dismissed their claim, they were successful in their appeal against the refusal of public transport concession cards to fund the additional travel costs.166 A curious variant of the contentious State/Church relationship surfaced in the Best Practice case.167 This concerned a non-denominational school which espoused religious beliefs in general but none in particular and for that reason found itself disadvantaged as regards funding arrangements. In refuting the seemingly conscientious objection—grounded in a generic commitment to religious beliefs—and justifying the ruling that this did not constitute religious discrimination, Peedom DP cited the Mason CJ and Brennan J dictum in the Scientology case to explain that

165 (1981) 146 CLR 559. Also known as the State Aid or Defence of Government Schools (DOGS) case. 166 Christian Family Schools Association of Australia v. Public Transport Corporation (1990) EOC ¶92-300. 167 Best Practice Education Group Ltd T/as Blue Gum School v. Dept of Education & Community Services [2002] ACTDT 1.

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the school approach to religion lacked the crucial component that it be ‘based upon a supernatural being, thing or principle’. It might be fair to comment that such a rationale is questionable because: it relies upon a theistic definition of what constitutes a ‘religion’ or ‘belief’; ignores an equality interpretation which would give equal status to secularism; and raises the issue of the presence or absence of a legislative reference to religious belief, which varies across the states and territories. It also, of course, seemingly rests on a ‘religion test’ which, although confined by the fourth clause of s.116 to the Commonwealth, is contrary to that principle. The scope of s.116 was subsequently examined in Hoxton Park Residents Action Group Inc v. Liverpool City Council (No. 2).168 This concerned an appeal against an earlier decision dismissing an objection, perhaps conscientious, to the channeling of Commonwealth funding to the state of NSW (in accordance with s.96 of the Constitution) for the running of the Malek Fahd Islamic School. The court upheld the earlier decision, ruling that neither state nor federal government had breached the constitutional prohibition on “establishing” a religion. It found that providing funds to a religious school (where such funds are conditional on satisfying objective, secular, educational criteria and also provided on a needs-based and in an evenhanded manner to other religious schools from different traditions), did not amount to the establishment of a State religion. Section 116 will only be breached by a law which has as its clear purpose an outcome prohibited by that provision.

8.8.3.4

Colleges/Universities

The murder, half a century ago, of a gay academic who lectured at the University of Adelaide's law faculty, has come to serve as a reminder of the need to develop and maintain policies of inclusiveness in Australia’s colleges and universities.169

LGBT Related Issues The role of religion in the Australian educational system triggers related tensions in the universities and colleges. In November 2017, for example, the South Coast Baptist College is reported to have removed a relief teacher from the roster after it emerged he was in a same sex relationship.170 In 2018 there was an instance of ‘no platforming’ by the University of Western Australia of an American paediatrician, known for denying much of the science concerning trans people. His invitation to

168

[2011] NSWSC 1312; [2016] NSWCA 157. Dr George Duncan died in 1972 in an attack suspected to have been committed by police officers. See, further, at: https://www.bbc.co.uk/news/world-australia-41964671. 170 See, further, at: https://thewest.com.au/news/wa/gay-teacher-fired-by-south-coast-baptist-col lege-in-waikiki-sparking-debate-about-discrimination-rights-of-religious-schools-ng-b88665819z. 169

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give a talk at an Australian Family Association event was abruptly cancelled—on health and safety grounds—due to the high level of student protest.

Affirmative Action There has been no shortage of law and policy initiatives to promote inclusive education for disabled students: the Disability Discrimination Act 1992 and the Disability Standards for Education 2005 as subsequently reinforced by the National School Improvement Tool (ACER 2012). Indeed, there is evidence that similar affirmative action may benefit a range of other groups such as members of the LGBT community: the 2014 Going Upstream initiative171 being one such initiative. Clearly law and policy initiatives also could be directed towards addressing the significant under-representation of Indigenous students in tertiary level education. Targetting specific groups, however, can be counterproductive. It may be that an increasingly diverse student population requires policies that will address issues of inclusiveness across a broad front, designed to promote greater overall homogeneity.

8.8.4

Public Defence and Security

The public/private balance is clearly particularly fraught in the context of public defence and security.

8.8.4.1

Military Issues

Australia is held to have some of the broadest laws in the democratic world governing individual conscientious objection to conscripted military service.172 It allows, for example, an individual to conscientiously object to a particular war.

Service in the National Armed Forces Conscription at times of peace has no application to service in the Australian armed forces which reduces the significance of conscientious objection in this context. Under s. 61A of the Defence Act 1903 (Cth) persons exempt from such service in a 171

National LGBTI Health Alliance, Going Upstream: A framework for promoting the mental health of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, 2014, at: https://www. beyondblue.org.au/docs/default-source/default-document-library/bw0257-going-upstream-onlineo-lgbti-mental-health-promotion-framework.pdf. 172 See, further at: https://www.abc.net.au/religion/conscientious-objection-to-war-as-a-model-forresolving-other-mo/10095398.

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time of war include those whose conscientious beliefs do not allow them to participate in war or warlike operations. In Gaynor,173 an officer in the armed forces conscientiously objected when his commission was terminated because he had refused to stop publicly expressing offensive views, claimed to be mandated by his Catholic religion, on matters such as LGBTI rights. While the court found that the plaintiff was entitled to exercise his right to freedom of speech, and duly set aside the decision terminating his commission, Buchanan J refuted the conscientious objection claim stating that he was “satisfied that the applicant acted by choice to make the statements which he did” and did not accept “that even as a matter of conscience, he felt he had no choice but to defy the instructions and orders given to him”.174

Transgender Military Personnel The 2010 conscientious objection of Captain Bridget Church to dismissal proceedings, following notification of her intention to commence transitioning treatment, provided the incentive to change army policy towards trans persons. Until then, restrictions on the enlistment of trans persons had been maintained and not until 2015 did the Australian Defence Force introduce protective guidance regulations for those undergoing a trans process.

8.8.4.2

Prisoners and Asylum Seekers

Conscientious objection carries considerable added weight when claimed by persons already deprived of their liberty.

Prisoners The significance of a distinction between claims based on religious discrimination and on conscientious objection has been highlighted by Muslim prisoners being denied provision of halal meat. In Khan v. Commissioner, Department of Corrective Services175 it was determined that being a Muslim was itself insufficient to establish the necessary ‘close tie between that faith and his race, nationality or ethnic origin’

173

Gaynor v. Chief of Defence Force (No 3) [2015] FCA 1370. Ibid at p. 215. 175 [2002] NSWADT 131 [21]. 174

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required to sustain an allegation of religious discrimination. However, 5 years later, the same complaint by a Muslim prisoner in another State facility was upheld.176

Asylum Seekers Australia is a party to the Refugees Convention and the Refugees Protocol. The Migration Act 1958, s.36(2), requires an applicant for a Protection (Class XA) visa—needed to acquire asylum status and forestall deportation—to satisfy the criteria set out in the Convention and its Protocol.177 However, the fact that the deportees are often Muslims,178 and the general failure to ensure that detained asylum seekers are adequately assisted to navigate that process has been repeatedly criticised by international bodies. Human Rights Watch, in its 2020 World Report,179 notes that Australia continues its policy of intercepting asylum seekers and forcibly transferring them to Papua New Guinea and Nauru, the medical facilities of which are often unable to cope with the refugees’ complex medical needs. When Australia appeared before the UN HRC for its Universal Periodic Review (UPR) in 2021, more than 40 nations questioned its policies toward asylum seekers and refugees with particular concern for the continued use of offshore processing and the prolonged detention of asylum seekers. For an asylum seeker to successfully resist a deportation order and acquire a Protection (Class XA) visa then, under s.91R(1) of the 1958 Act, he or she must prove that a return to their country of origin would expose them to persecution, meaning “serious harm”. Australian immigration authorities have consistently interpreted this as imposing a high threshold of proof if an applicant is to satisfy visa requirements. Threshold criteria were not met, for example, in a 2006 case concerning a young citizen of Taiwan who had arrived in Australia with his parents as a child and sought to resist deportation to that country on the grounds that all male citizens were required to serve in the army. His claim that he conscientiously objected to military service was dismissed by the Tribunal.180 In 2009 a 19 year old Chinese citizen appealed a decision of the Refugee Review Tribunal not to grant him a Protection (Class XA) visa.181 He claimed that as a Catholic he and his family had been denied the right to practise their religion openly and fully and feared 176 State of Queensland v. Mahommed (2007) EOC ¶93-452 (QSC). Note that in 2020, Muslim immigrants detained in Brisbane conscientious objected to the AHRC that they had not been given certified halal food for more than 12 months. 177 Further criteria for the grant of a Protection (Class XA) visa are set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994. 178 Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association, [I987171 A.L.R. 578. 179 Human Rights Watch, World Report 2020, at: https://www.hrw.org/sites/default/files/world_ report_download/hrw_world_report_2020_0.pdf. 180 [2006] RRTA 168. 181 SZNYA v. Minister for Immigration & Anor [2009] FMCA 1283.

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religious persecution if returned to China. His conscientious objection—to the probability of military service and deprivation of his right to practice his religion—that would follow from deportation was rejected. The court upheld the Tribunal’s finding that his assertion lacked credibility as he seemed unaware of the basic precepts of Catholic doctrine. Again, in 2013, in in SZQRM v. Minister for Immigration and Citizenship182 a married Lithuanian homosexual/bisexual couple claimed a conscientious objection to being returned to Lithuania on the grounds that the prevailing religious mores in that country had led to them being attacked in the past—causing the man to suffer severe depression and to attempt suicide—which would happen again if they were forced to return. Although Australian courts have long recognised that an applicant with SOGI related issues183 may have a valid claim for refugees status on the basis of belonging to an at risk ‘social group’ in this case, while noting that “intolerance against homosexuals and bisexuals is widespread throughout Lithuania”, the court took the view that “this was not a relevant consideration”. It therefore upheld the Tribunal’s finding and dismissed the appeal.

8.8.5

Employment

Allegations of discrimination in one form or another, occur most frequently in an employment context. In some instances these may be construed as conscientious objections.

8.8.5.1

Right of Employers to Hire and Fire

Employment practices are governed by the Fair Work Act 2009 (Cth), s.351(1) and s.351(2)(c).184 Essentially these provisions require employers to act in good faith, without prejudice and to take steps to ensure their staff are not exposed to discrimination. “Discrimination,” in the context of employment or occupation, is as defined in the Human Rights and Equal Opportunity Commission Act 1986.

Religious Organisations Some employment cases involving a religious organisation can present the court or regulatory body with a direct and implacable clash of conscientious objections. So,

182

[2013] FCCA 772. See, for example, 1610382 (Refugee) [2017] AATA 1116 and 1703990 (Refugee) [2017] AATA 1014. 184 Also relevant are the provisions of the International Labour Organisation’s Discrimination (Employment and Occupation) Convention, ratified by Australia in 1973. 183

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in Thompson v. Catholic College Wodonga,185 the plaintiff, an unmarried teacher, objected to being summarily dismissed on return from maternity leave while the employing organization objected that, as a teacher, her status as an unmarried mother flagrantly violated its religious beliefs. The EOC upheld her unfair dismissal complaint. So, also, in Griffin v. Catholic Education Office,186 when the complaint of a LGBTI activist teacher who had been refused employment in Catholic schools for the same reason was similarly upheld. Conversely, when an irreligious employee is placed in an invidious position in the form of a new contract requiring them to become an active church member of their employing religious organization (Baptist Community Church) then—with legal recognition now extending to those with no religious belief—the conscientious objections of such an employee were held to be entitled to protection.187 These cases demonstrate the recognition and authority now legally available to individuals who take a stand against the discriminatory effects of actions taken by religious organisations acting in accordance with their traditional doctrinal beliefs. Australian caselaw, as in other jurisdictions, reveals the legal significance attached to the closeness of the relationship between the functional duties of a post and the religious beliefs of an employing religious organization. So, in Ciciulla v. Curwen-Walker188 the complaint by an employee, whose resignation was prompted by her conscientious objection to pressure from the employer to attend services at their Pentecostal church, was upheld because of the lack of any such close relationship. In Mornington Baptist Church Community Caring Inc189 a Baptist Church unsuccessfully sought to avail of the religious exemption privilege to justify its restriction of staff selection to those who had “publicly confessed Jesus Christ” and were “walking in daily fellowship with Jesus”. Their claim failed because the organisation was unable to show why its religious beliefs required it to so restrict employment in order to fulfill the functional tasks of its community care projects. This rationale was also evident in Walsh v. St Vincent de Paul Society Queensland (No. 2)190 when the tribunal upheld the conscientious objection of the plaintiff to being rejected for a post because she was not a Catholic. The respondent’s claim that being a Catholic was a “genuine occupational requirement” for the post of president of that society was dismissed because; the respondent knew that the claimant was not a Catholic, welcomed her as a member and saw her elected as president of three of its conferences, saw her inducted as a president of a conference by a priest of the church and allowed her to work without challenge for years as a conference president.

185

(1988) EOC 92-217 (Vic ESCAB). (1998) EOC 92-928 (HREOC). 187 See, Dixon v. Anti-Discrimination Commissioner of Queensland (2004) EOC 93-327 (SCQ). 188 (1998) EOC 92-934 (Vic ADT). 189 (2006) EOC 93-422 (VCAT). 190 [2008] QADT 32. 186

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Some state laws (e.g. Victoria) provide recognition and protection for individuals who publicly manifest religious belief or activity and also for those who manifest their lack thereof.191

Secular Organisations In Marett v. Petroleum Refineries (Australia) Pty Ltd192 an employee refused to pay union dues on the grounds of his religious beliefs, resulting in his being ostracised by his colleagues and eventually sacked. The Equal Opportunity Board found that while in principle the employee was entitled to conscientiously object in the way he did, the resulting turmoil in the workplace justified some form of constraint by management on the employee but not to the extent of the punitive measures it in fact imposed.

SOGI Related Issues The status of transgender and intersex Australians has been given legal recognition as demonstrated in Hanover Welfare Services Ltd (Anti-Discrimination Exemption).193 This concerned the ruling of a regulatory authority that a women’s shelter was exempted from the relevant anti-discrimination legislation thereby allowing it to reject male-to-female transgender persons as “women” for the purposes of providing shelter. Arguably, this decision could be read as endorsing the corporate conscientious objection of a women’s organization whose protest was grounded on a belief system that excluded those identifying as transgender or intersex from its definition of ‘woman’.

8.8.5.2

The Workplace

Employers are generally required to make reasonable accommodation for the religious practices of employees in the workplace. The limited caselaw indicates that judicial and regulatory bodies exercise proportionality in balancing the employee’s right of conscientious objection against that of their employer to run an efficient business.

191

Author acknowledges advice of Beth Gaze on this matter (note to author, 22.02.17). (1987) EOC 92-206 (VCAT); Petroleum Refineries (Australia) v. Marett (1988) EOC 92-237 (SCV). 193 [2007] VCAT 640. The applicaton by Hanover Services was subsequently withdrawn following discssions with the Victorian EOC. 192

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Undue Hardship Employee claims of suffering undue hardship as a consequence of their attempts to claim recognition for their religious beliefs in the workplace have not always fared well. In Ahmad McIntosh v. TAFE Tasmania194 an allegation of religious discrimination, made by a Muslim teacher who had not been provided with a dedicated prayer room nor released from duties on Fridays and on Islamic holy days was dismissed, as was the claim in D’Urso v. Peninsula Support Service Inc195 by an employee who was asked to remove a notice to hold a prayer service during work hours in a secular workplace.

Sincerity of Belief In Fox v. Canberra Television Pty Ltd196 a manager who was dismissed when he refused to work on Saturdays for sincerely held religious reasons, sought reinstatement at an Industrial Tribunal. However, while acknowledging the sincerity of his conscientious objection to working on what for him was a holy day, the Tribunal declined to issue the requested order. It found that given the financial circumstances of the company it was impractical for it to provide staff to relieve the manager every Saturday and that it would not be financially feasible for it to close the store on that day. This interesting decision would seem to recognise both the sincerity of the objector’s belief and the legitimacy of his conscientious objection to an employment practice grounded on that belief. However, on balance—in this particular set of circumstances—his right to exercise that privilege was invalid as it was judged likely to have a disproportionate adverse affect on his employer’s right to run an efficient business.

8.8.6

Commercial Services

In Australia, as elsewhere, the filtering of service access in accordance with a provider’s values is a matter that can give rise to conscientious objections when such values are non-human rights compliant and/or conflict with the beliefs of a service user.

194

[2003] TASADT 14. [2005] VCAT 871 (Unreported, Member Davis V-P, 11 May 2005). 196 (1999) VCAT, Tribunal No A328 of 1999. 195

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8.8.6.1

425

Goods and Services

The above mentioned 2013 Act extended the prohibition against discrimination to include grounds of sexual orientation, or gender identity or expression, throughout Australia.

8.8.6.2

Religious Owners of Commercial Businesses

A refusal to provide services or goods to an individual based on their sexuality will breach the Sex Discrimination Act 1984 (Cth). So, when Christian Youth Camps refused to provide their services to Cobaw Community Health Services, on the grounds that they disapproved of the latter’s same sex policies, that were commiting just such a breach. In the resulting Cobaw Community Health Services Limited v. Christian Youth Camps Limited & Anor197 the issue was whether Christian Youth Camps, a religious charity, could justify its withholding of services to people because of their sexual orientation, by claiming statutory exemption from what would otherwise be discriminatory practice. Justice Hampel’s conclusion, endorsed by the Court of Appeal,198 was that the respondents did not have to refuse the booking in order to comply with their genuine religious beliefs and in taking that step they had discriminated in breach of the Act. In reaching that conclusion the court was following the precedent set in Burke v. Tralaggan199 a quarter of a century earlier. That case concerned a couple who had been refused the rental of a premises because they were an unmarried. The owners conscientiously objected to the status of the couple and were not prepared to compromise their Christian principles by “making money out of something” they did not believe was right. Ultimately the Tribunal found that the couple had suffered unlawful discrimination and ruled that the religious exemption provided in the relevant legislation was confined to religious bodies and “does not operate to allow the members of any religion to impose their beliefs on secular society, so as to exempt them from the operation of the law”. Both cases would seem to rest on the validity of distinguishing religious beliefs from the practices of religious believers. This distinction is upheld by international law (clearly stated, for example, in the ICCPR, Articles 18.1 and 18.3) and in much international caselaw,200 but is nonetheless a curious proposition as religious adherents invariably believe that their faith should be manifested through their actions. As these instances illustrate, however, not all practices of a religious person or of a religious body are intrinsically religious nor a necessary manifestation of a religious belief.

197

[2010] VCAT 1613. See, further, at: www.austlii.edu.au/au/cases/vic/VCAT/2010/1613.html. Christian Youth Camps Limited & Ors v. Cobaw Community Health Services Limited & Ors [2014] VSCA 75. 199 [1986] EOC 92-161. 200 See, for example, Reynolds v. United States [1878] 98 U.S. 145. 198

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It should be noted that the pending Religious Discrimination legislation will enable religious bodies with commercial facilities such as camps and conference centres to filter potential service users in accordance with their religious beliefs when deciding whether or not to make their services available.

8.9

Conclusion

The Religious Discrimination Bill 2019 bears a strong resemblance to the U.S. religious liberty laws promulgated during the Trump Administration. The same wrestling with ‘liberty laws’ in Australia, the U.S. and, if more tentatively, in the UK indicates the difficulty these modern democracies are having in balancing the principles of equality legislation against those of religious freedom. This legislative initiative carries particular implications for Australia because so much of its public service infrastructure is owned by religious organisations even if heavily funded by government. It is unlikely that this long awaited Bill will do much to correct the systemic imbalance between Christian and secular interests in public health, education and social care facilities or constrain the established “institutionalised conscientious objection” resulting from the religious filtering of access to and staffing of such facilities. Furthermore, by reinforcing and extending the professional right to conscientiously object in a public health context it is probable that women and reproductive rights will suffer, as such objections are most commonly exercised in the arena of women’s health services. At the other extreme, there would appear to be an absence of political willingness to apply the privileges associated with belief based exemptions into an Indigenous communities context. Given the present pandemic context, the federal ‘No Jab No Pay’ and the state level ‘No Jab No Play’ legislation seem like prescient steps towards mandatory covid vaccination and health management programmes that may come to be applicable well beyond Australia. So also with the introduction of the Biosecurity Act 2015 which redefines designated health hazzards as matters of national security, thereby insulating them from the challenges of conscientious objection.

References Brown JA (ed) (2008) Whistleblowing in the Australian public sector. ANU E Press Evans C (2009) Legal aspects of the protection of religious freedom in Australia. Available at: https://humanrights.gov.au/sites/default/files/content/frb/papers/Legal_%20Aspects.pdf Dal Pont G (2000) Charity law in Australia and New Zealand. Oxford University Press, Melbourne, p 149 Gallois W (2007) On dreaming time. In: Time, religion and history. Pearson Education Li A, Toll M (2021) Removing conscientious objection: the impact of No Jab No Pay and No Jab No Play vaccine policies in Australia. Prev Med 145

References

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Quartly M, Swain S, Cuthbert D (2013) Market in babies: stories of Australian adoption. Monash University Publishing Rodger D, Blackshaw BP (2021) Quotas: enabling conscientious objection to coexist with abortion access. Health Care Anal 29:154–169. https://doi.org/10.1007/s10728-020-00419-5 Sadurski W (1989) On legal definitions of religion. Aust Law J 63:834–843 Saunders C (2010) The Australian constitution and our rights. Future Just:117–135 Swain S (2013) Homes are sought for these children: locating adoption within the Australian stolen generations narrative. Am Indian Q 37(1-2):203–217 Tan CL (2010) ‘The effect of the “public–private” dichotomy on the concept of Indigenous “sacred place” in the religious freedom and heritage protection laws of Australia, USA, Canada and New Zealand. PhD Thesis. University of Western Australia Ullman J, Ferfolja T (2016) The elephant in the (class)room: parental perceptions of LGBTQinclusivity in K-12 educational contexts. Aust J Teacher Edu 41(10) White BP, et al(2021) Legislative options to address institutional objections to voluntary assisted dying in Australia. UNSW Law J Forum No.3 https://www.unswlawjournal.unsw.edu.au/wpcontent/uploads/2021/05/2021-3-White-et-al.pdf Wicclair M (2000) Conscientious objection in medicine. Bioethics 14(3):205, 213 Windshuttle K (2004) The White Australia policy. MacLeay Press

Chapter 9

New Zealand

Abstract This chapter begins with a brief overview of the historical background, leading into the current social context and a consideration of the social movements and issues that generate dissent and shape the context for conscientious objection. It then identifies and examines the relevant principles, doctrines and definitions including ‘religion’, contemporary forms of ‘belief’ and matters of conscience. Moving on to consider the principle of conscientious objection and the related exemptions, it tracks the evolving policy as applied consecutively to oaths, military service, abortion and other health issues, same sex relationships, euthanasia etc. It then states the relavant legal framework, domestic and international legislation and the court system. The core of the chapter begins with an appraisal of the relationship between fundamental human rights and conscience before launching into a systematic study of the issues lying at the heart of the conscientious objection/equality law intersect. This it does by considering illustrative caselaw in relation to: public health matters; social care services; national defence; public education; employment; and commercial services.

9.1

Introduction

New Zealand or Aotearoa acquired a measure of independence in 1840 with the Treaty of Waitangi—te Tiriti o Waitangi—which established the framework for an evolving public policy that increasingly gives greater weight to Mäori culture and beliefs. This multicultural Pacific nation comprises 200 ethnic groups with over 160 languages, though English is the lingua franca. According to the latest national census, as at March 2020, it has a population of 5 million, of which: approximately 71% identify with European ethnic groups, mostly British or Irish, compared with 80% in 2003; while the 17% who identify as Māori, constitute the largest non-European ethnic group.1 1

See, further, at: https://www.stats.govt.nz/information-releases/national-population-estimates-at31-march-2020-infoshare-tables.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_9

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9 New Zealand

This, the last of the jurisdiction specific chapters, unfolds like the others. Beginning with a brief overview of the historical background, leading into the current social context and a consideration of the social movements and issues that generate dissent and shape the context for conscientious objection. It then identifies and examines the relevant principles, doctrines and definitions including ‘religion’, contemporary forms of ‘belief’ and matters of conscience. Moving on to consider the principle of conscientious objection and the related exemptions, it tracks the evolving policy as applied consecutively to oaths, military service, abortion and other health issues, same sex relationships, euthanasia etc. It then states the relavant legal framework, domestic and international legislation and the court system. The core of the chapter begins with an appraisal of the relationship between fundamental human rights and conscience before launching into a systematic study of the issues lying at the heart of the conscientious objection/equality law intersect. This it does by considering illustrative caselaw in relation to: public health matters; social care services; national defence; public education; employment; and commercial services.

9.2

Principles, Doctrines and Definitions

New Zealand is a country where its citizens are very largely, if nominally, Christian but its indigenous population believe in spiritual creatures that may inhabit mountains, rivers and the sea. Its proximity to the Pacific islands and to Asia has long facilitated an accommodation of Islam, Hindu and other religions. Moreover, some 20,000 of its population profess to be followers of the Jedi.2 All of which means that there is more elbow room here than in most common law nations for protests to be from the basis of sincerely held legally recognised beliefs and therefore entitled to the status of conscientious objection.

9.2.1

Religion, Belief and Matters of Conscience

The Human Rights Commission asserts, in its Statement on Religious Diversity, that “the State seeks to treat all faith communities and those who profess no religion equally before the law, and that New Zealand has no official or established religion”.3 This is perhaps treating somewhat lightly the continuing role of the monarchy with its close ties to an established Church, the ongoing weight and permeation

2

In the 2018 census, 20,409 people listed their religion as followers of the Jedi. Human Rights Commission, Statement on Religious Diversity, 2007, at: http://www.teara.govt.nz/ en/document/28196/statement-on-religious-diversity.

3

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431

of New Zealand’s distinctly Christian colonial heritage, and the implicit discriminatory influence both may represent to those of different cultural origins.

9.2.1.1

Traditional Religions

At first sight it would seem that the traditional approach to the definition of ‘religion’ continues to hold sway. Tomkins J, in Centrepoint Community Growth Trust v. Commissioner of Inland Revenue,4 having declared that he was not aware of any New Zealand authorities on the meaning of ‘religion’, then applied the Mason and Brennan JJ principles as stated in the leading Australian case of Church of the New Faith v. Commissioner of Pay-roll Tax,5 which required “first, belief in a supernatural Being, Thing or Principle and second, the acceptance of canons of conduct in order to give effect to that belief”—these to be interpreted broadly and flexibly.6 Indeed, the activities of organisations registered as being for the purpose of the advancement of religion also appear to be largely of the traditional orthodox variety, mainly concerned with promoting the work of the Church, and often doing so through education and health or social care service provision. In fact, however, the reality is a little different.

9.2.1.2

Contemporary Belief Systems and Matters of Conscience

The New Zealand judiciary have, understandably, taken a cautious approach when faced with questions of what constitutes “belief” for legal purposes. As Gresson J noted, in Watch Tower Bible and Tract Society v. Mount Roskill Borough7 “it is not for a court, in a field in which it can profess no competence, to disqualify upon some a priori basis certain beliefs as incapable of being religious in character”. An approach again illustrated in Liberty Trust8 when Mallon J pointed out that: “it is not for the court to impose its own view as to the religious beliefs that are advanced through the scheme”.9 So, also, in Gay and Lesbian Clergy Anti-Discrimination Society Inc v. Bishop of Auckland,10 in relation to the conscientious objection of the respondent to what was perceived to be the exclusionary Christian doctrine on marriage which traditionally defined it as being between a man and a woman and

4

[1985] 1 NZLR 673. (1983) 154 CLR 120. 6 Ibid, at p. 136. 7 [1959] NZLR 1236 at p. 1241. 8 HC WN CIV 2010-485-000831 [2 June 2011]. 9 Ibid, at para. 125. 10 [2013] NZHRRT 36. 5

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confined approved sexual relationships to those occurring within such a marriage. The Tribunal was at pains to stress that:11 the separation of Church and State must be maintained. The Tribunal cannot determine what is at heart an ecclesiastical dispute . . .

Nonetheless, a broad view of what constitutes ‘religion’ allowed the Church of Scientology and the New Zealand Humanist Society to be recognised as religious organisations at a time when they were denied such status in the UK.

Legitimacy and Cogency As Mason and Brennan JJ acknowledged, in Church of the New Faith, tenets in themselves are not a determining constituent of religion.12 As they went on to explain, in order to verify that adherents’ beliefs and actions together are sufficiently coherent to constitute a religion, the court needs to establish a binding link. This approach was followed in Centrepoint,13 which concerned an incorporated community of like-minded persons who shared the common purpose of advancing the spiritual education and humanitarian teachings of Herbert Thomas Potter and ‘of all the messengers of god’. The court found that, while some members of the community believed in a supernatural being, others held “a belief in the supernatural in the sense of reality beyond that which can be perceived by the senses”. Included in such beliefs were concepts that related not only to man’s relationship to man but also to his relationship to the supernatural in the sense of a Being or a reality beyond sensory perception. The court held that in terms of their formal association, beliefs and practices the members satisfied the definition of religion.14 However, in Mahuta & Ors. v. Waikato Regional Council,15 the court warned that “perceptions which are not represented by tangible effects do not deserve such weight as to prevail over the proposal and defeat it”. Doctrines can provide that link but in their absence, or guided only by vague doctrines, the court or regulator will be faced with correspondingly greater verification difficulties.

Beliefs of Indigenous People The deeply rooted Māori (or tangata whenua) community, with its distinctive culture and spiritual beliefs—recognised and protected by the Treaty of

11

Ibid at paras. 33 and 42. (1983) 154 CLR 120, at p. 139. 13 [1985] 1 NZLR 673. 14 Ibid. Citing as a guiding precedent, the earlier ruling in Church of the New Faith in the High Court of Australia. 15 A91/98 (29 July 1998). 12

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Waitangi—has long offered a resolute counterpoint to the values, practices and laws of their Euro-centric fellow citizens. In common with Indigenous People generally, Māori religion and culture are closely interwoven: religious or spiritual beliefs form shared reference points for daily life; the elements—land, air and sea—being the domain of spiritual creatures, are viewed as being unavailable for exclusive ‘ownership’ by State or persons.16 The Resource Management Act 1991 and the Ngai Tahu Claims Settlement Act 1998 endeavour to integrate Treaty of Waitangi principles, by recognising the role of Māori spiritual beliefs in environmental management, so as to safeguard Māori sacred sites and other cultural interests in local government planning decisions. The Hazardous Substances and New Organisms Act 1996, s.6(d), requires decision-makers to take into consideration “[t]he relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, wähi tapu, valued flora and fauna, and other taonga” while the Historic Places Act 1993 also has specific provisions relating to wähi tapu. By the late 1980s, greater weight was being given to their rights.17 Judicial and regulatory notice has been taken of Māori beliefs—involving taniwha (spiritual guardian), tikanga (custom), taonga (treasures) and whakapapa (bloodlines)— manifested in ways that include karakia (prayers) and reverence for waahi tapu (sacred sites).18 Legislative protection has been provided in statutes such as the Ngai Tahu Claims Settlement Act 1998 and the Resource Management Act 1991. The latter specifically requires, under s.6(e), that all persons exercising functions and powers under the Act “recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga”. While the New Zealand Coastal Policy Statement requires the authorities to “recognise that tangata whenua have traditional and continuing cultural relationships with areas of the coastal environment, including places where they lived and fished for generations”. In short, the legislature and judiciary have a declared intent to protect Māori spiritual beliefs and their traditional places of worship.

9.2.2

State Neutrality

Church and State are not constitutionally separated. Moreover, it remains the case that the titular head of State is the British Queen, a status that brings with it that of Supreme Governor of the Church of England, which must compromise any claim the State may have to be neutral in relation to all religions, let alone to be wholly

16

Ngāti Apa v. Attorney-General [2003] 3 NZLR 643. See, Huakina Development Trust v. Waikato Valley Authority [1987] 2 NZLR 188 (HC) and New Zealand Māori Council v. Attorney-General [1987] 1NZLR 641 (CA). 18 See, for example, Otararua Hapu v. Taranaki Regional Council (A124/98) and Bleakley v. Environmental Risk Management Authority [2001] 3 NZLR 213. 17

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secular.19 Nevertheless, there have been many judicial assurances of State neutrality: in Carrigan v. Redwood, “there is no State Church here”;20 in Doyle v. Whitehead,“the State is neutral in religion”;21 and in Mabon v. Conference of the Church of New Zealand: “unlike England and Scotland, New Zealand does not have a national established Church”.22 The case of Doyle v. Whitehead,23 an early and often cited illustration of State enforcement of religious neutrality, concerned a council bylaw prohibiting the playing of golf on Sundays; a bylaw established solely in response to the conscientious objection of the proprietors of a nearby Presbyterian orphanage. Stout CJ declared the bylaw invalid, as its only purpose was to enforce a Christian religious doctrine. In Mair v. Wanganui District Court,24 Heron J cited the principle of State neutrality to justify upholding a conviction for contempt of court in respect of a person who, in defiance of a judicial directive, had recited a karakia during proceedings. As in Australia, there is a strong tradition of Church and State working in partnership: for example, there are two registered Christian-associated political parties; also from an early stage the prevailing government policy has been to encourage religious organizations to fill the gaps in public services by providing health and social care facilities for the poor, ill or those otherwise disadvantaged. Adhar has detected a trend in recent public policy that he refers to as “a steady pattern of dismantling . . . historic Christian remnants from the public square” accompanied by “a privileging of Māori spirituality”.25 Such dismantling has a long way to go, however, if it is to undo the results of centuries of State support for Christianity and reduce its continuing pervasive influence throughout the social infrastructure it largely founded.

9.2.2.1

Preferencing Christianity and the Christian Cultural Heritage

State preferencing of Christianity is proclaimed in the national anthem—‘God Defend New Zealand’—which proudly declares the Christianity of the State, and is evident in the Speaker’s prayer that opens parliamentary proceedings in the House of Representatives. Continuing State support for Christianity is also apparent in the public education system, which long remained compromised in terms of its exposure to religious influence as permitted under the anachronous provisions of the

19

See, Ahdar and John Stenhouse (2000). [1910] 30 NZLR 244 at p. 253. 21 [1917] NZLR 308. 22 [1998] 3 NZLR 513 at p. 523. 23 [1917] NZLR 308. 24 [1996] 1 NZLR 556 (HC). 25 See, further, Adhar, R.T., ‘The Religious Demography of New Zealand’, p. 547 at: https://www. iclrs.org/content/blurb/files/New%20Zealand.pdf. 20

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Education Act 1961, though the latter has now been displaced by the Education and Training Act 2020.26 The Christian cultural heritage runs in tandem with that of the Māori which it at first sought to suppress but has more recently come to officially respect. Indeed, as Christianity and religion more generally fade in terms of social significance and numbers of adherents, the Māori are experiencing something of a cultural revival. Other religions have also made a contribution to New Zealand’s mixed cultural heritage. In King-Ansell v. Police,27 for example, judicial notice was taken of the fact that Jews—because of their shared customs, beliefs, traditions and characteristics derived from a common or presumed common past—had a “historically determined social identity based . . . on their belief as to their historical antecedents”.

Indigenous People The record of State protection for Māori beliefs began inauspiciously with the Tohunga Suppression Act 1907 which specifically discriminated against them by criminalising the activities of the ‘tohunga’ their traditional healers.28 Since then matters may have improved but from time to time there are conscientious objections by and on their behalf as, although they account for approximately 16 per cent of the population, Māori are disproportionately disadvantaged: experiencing discrimination in schools, the workplace, and access to the health system; while also accounting for just over half of the prison population. The recognition given to Māori culture and beliefs, evident for many years in the haka rugby ritual, has also been affirmed more recently by the State in practices such as inclusive references in national ceremonies, in environmental and planning legislation, in the performance of hikitapu or spiritual cleansing rituals in overseas embassies, and in the increasing use of karakia (prayers) to commence court proceedings or public meetings. A healthier balance is now growing between a Māori cultural imperative and western social mores, laws and institutions.

9.2.2.2

The Religious Exemption

An exemption from equality and non-discrimination legislative provisions, on grounds of religion or belief, is available to religious organisations and is widely used in many different contexts, including employment (see, further, below at Sect. 9.8.1.2). It is established principally in NZBORA and the HRA but is also recognised in such legislation as: the Education Act 1964; the Charities Act 2005; and the Marriage (Definition of Marriage) Amendment Act 2013. It privileges not

26

Author acknowledges advice from Dean Knight on this matter (note to author, 19.10.21). [1979] 2 NZLR 531 at pp. 542–543. 28 7 Edw. VII No. 13. The Act was not repealed until 1962. 27

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just religious institutions but extends also to their offshoots such as schools, hospitals and other health and social care facilities. In 2013 the HRRT, in Gay and Lesbian Clergy Anti-Discrimination Society Inc v. Bishop of Auckland,29 ruled that the religious exemption in s.39 of the HRA remained unaffected by the 2013 Act (see, further, above at Sect. 9.2.1.2) and noted that “while the State is free to determine what according to the secular law of the land is to be defined as marriage, the Anglican Church is free to decide how it will define marriage for the purposes of its own doctrine and teachings”. It therefore followed that the Act “did not amend the doctrine of any church, including in particular that of the Anglican Church, regarding the sacrament of marriage as conceived by that church”30 and consequently the refusal to permit the ordination of a person in a homosexual relationship as priest or deacon in the Anglican Church did not constitute discrimination on the grounds of sexual orientation. This decision can be read as judicial affirmation that ‘institutional conscientious objection’ is securely established in New Zealand.

9.3

Conscientious Objection and Exemption: An Evolving Policy

A prerequisite for an objection to be conscientious is that it be grounded in the beliefs of a religion or in such other beliefs as are cogent, coherent, reasonably substantive and sincerely held by the objector (see, further, Sect. 1.2.1.2). The ever increasing range of such religions and beliefs might be expected to have facilitated tolerance and accommodated the mutual expression of conscientious objections between the different cultural groups, in what is after all a relatively small jurisdiction, but this has not always been the case.

9.3.1

Initial Exemptions

Claims to be exempted from established and legally enforceable civic duties on grounds of conscientious objection probably began in the context of the legal requirement for witnesses and jurors to swear an oath on commencement of their role in court proceedings. The Declarations in Lieu of Oaths Bill 1855 was introduced in parliament to allow those who conscientiously objected to swearing an oath on religious grounds—such as Quakers and Wesleyan Methodists—to instead substitute a solemn affirmation. The Bill was readily accepted as it followed a legislative precedent already established in England. A century later the Oaths and 29 30

[2013] NZHRRT 36. Ibid, at paras 31 and 9.

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Declarations Act 1957 provided for greater flexibility in the use of permitted affirmations. Extending legal recognition to conscientious objection in a military context was possibly initiated in the late nineteenth century when conscription for military service was first introduced with the outbreak of the Māori wars. Later, during World War I, government in New Zealand, in keeping with its Australian counterpart, took a particularly strong stand against conscientious objectors: Archibald Baxter,31 an iconic figure in the history of New Zealand dissent, suffering State punishment and public humiliation; and some 600 other men, being granted such status, were penalised by losing their civil rights including nearly 300 who were imprisoned in harsh conditions.32 Again, in WWII, of some 5000 conscientious objectors an estimated 800 were held in isolated internment camps. Since then exemptions from conscription were possible, under ss.28-36 of the Military Training Act 1949, for those objecting on religious grounds until conscription was abolished by the Volunteers Employment Protection Act 1973. In New Zealand the definition of conscientious objector could be satisfied by someone, not a pacifist, but simply opposed to war for political reasons.33

9.3.1.1

Legal Recognition of ‘Conscience’

Under s.13 of NZBORA there is a “right to freedom of thought, conscience, religion, and belief” while a similar right is to be found in Articles 18 of the UDHR and the ICCPR, both ratified by New Zealand, in 1948 and 1978 respectively. So legal recognition of “conscience”, its distinctiveness, and its separatness from “religion” and “belief” was established at an early stage.

9.3.1.2

An Aspect of Citizenship

As was apparent in the official attitude towards conscientious objectors to wartime service, the duty of citizens was a matter taken seriously by the New Zealand authorities. From the outset, the privilege of being exempted from civic responsibilities on grounds of religion or belief was only reluctantly conceded.

31

See, further, at: https://menwhosaidno.org/context/baxter.html. See, further, at: https://www.aucklandmuseum.com/discover/stories/history/conscientiousobjectors. 33 See, further, Khouri, P.M., ‘Conscientious Objection and Compulsory Military Service in New Zealand’, Auckland University Law Review, at: http://www.austlii.edu.au/au/journals/ AukULawRw/1971/6.pdf. 32

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9 New Zealand

Abortion, Contraception and Adoption: A Context for Developing Policy

Family planning services in New Zealand began in the mid-twentieth century: the first birth control clinic opened in Auckland in 1953; oral contraception became available in 1961, though restricted to married women; and limited access to legal abortion services commenced in 1977. Each step in this process of legalising the exercise of women’s reproductive rights was accompanied by protests and non-compliance from conscientious objectors. Given the global leadership New Zealand demonstrated in relation to women’s rights 130 years ago, when it became the first country in the world to extend suffrage to women, it is interesting that it was also one of the last of the developed nations to legalise abortion. Although this was achieved to a limited extent in 1977, abortion was not wholly decriminalised until 24 March 2020 when amending legislation was introduced. This finally concluded many years of recommendations to that effect from the UN CRC, CEDAW34 and other bodies. However, access to abortion services remains problematic partly because of the number of public health practitioners who conscientiously object to participating in such procedures. Access to contraceptives fared somewhat better. The Criminal Law Amendment Act 1969 made it legal for the first time to use, sell and possess contraceptives. As elsewhere in the Part III jurisdictions, contraception generally and ‘the morning after pill’ in particular are a constant focus for conscientious objections from religious entities especially the Catholic Church. Extending a legal entitlement to adopt to same sex couples was initially as problematic in New Zealand as elsewhere, attracting the same flow of objections from those who considered that such arrangements violated their religious beliefs. Although the Marriage (Definition of Marriage) Amendment Act 2013 was enacted with a provision enabling eligible married same-sex parents to adopt children the existing adoption legislation presented obstacles, as was confirmed by the HR Review Tribunal ruling in Adoption Action Incorporated v. Attorney-General.35 The Tribunal then pointed out that the Adoption Act 1955 and the Adult Adoption Information Act 1985 contradicted the HRA and NZBORA by discriminating against people based on sex, age, marital status and disability. Not until the McHardy decision, in Application by SJD & TYW,36 did judicial interpretation of eligibility change. His ruling, that the phrase “two spouses” in the Adoption Act 1955 should include same-sex de facto couples, not just the legally married, so as not to

34 See, the Committee’s expressed concern about New Zealand’s “convoluted abortion laws which require women to get certificates from two certified consultants before an abortion can be performed, thus making women dependent on the benevolent interpretation of a rule which nullifies their autonomy” (July 2012). 35 [2016] NZHRRT 9. 36 [2015] NZFC 9404.

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439

discriminate on the grounds of sexual orientation and thereby breach the HRA, was a landmark decision for New Zealand adoption law. The fact that same sex couples, married or unmarried, are now eligible to adopt presents traditional faith-based adoption agencies with the same forced choice as faced by their counterparts in the U.S. and UK. Catholic Social Services in Christchurch and the Latter Day Saints Social Services, for example, are restricted by their religious beliefs in the range of services they can offer. Specifically, although both engage in ancillary adoption work, their conscientious objections on the grounds of religious belief exclude the possibility of contracting with same sex prospective adopters and they are therefore excluded from registration and regulation by government as adoption agencies. It will be interesting to see if the USSC ruling, overturning the decision requiring the Catholic Social Services in the U.S. to comply with the equality provisions and accept same sex adopters and foster parents, will be emulated in New Zealand.

9.3.3

Same Sex Relationships: Evolving Contemporary Policy

Due perhaps to its indigenous Māori community, its proximity to Pacific Rim cultures and the assimilation of successive waves of European and Asian immigrants, New Zealand has a well established flexible approach towards, and respect for, the different configurations that may constitute family life. Sexual conduct between consenting same-sex adults was de-criminalised in 1986 under the Homosexual Law Reform Act. The strong opposition to this legislation was led by the Catholic Church, a Coalition of Concerned Citizens and by conscientious objectors such as Keith Hay and Peter Tait whose lobbying was driven by their Christian beliefs. The further step towards legal affirmation of same sex relationships took a while longer. Following a succession of cases in which the judiciary wrestled with new definitions of ‘family’ and with the problems entailed in transposing familiar concepts into a reconfigured and more challenging social and legal landscape,37 the Court of Appeal in Quilter38 considered the locus standi of same sex marriage. This case concerned three lesbian couples who objected to the established interpretation of the Marriage Act 1955 requiring it to conform to traditional Christian beliefs which excluded same sex couples and therefore denied such couples the right to marry. Arguably, if the plaintiffs opposition was based on genuine and sincerely held 37

See, for example: VP v. PM (1998) 16 FRNZ 61 (lesbian mother retains custody of two children); Re An Application by T [1998] NZFLR 769 (second parent adoption by lesbian mother of partner’s child by donor insemination refused); A v. R [1999] NZFLR 249 (non-biological mother in Re An Application by T, ibid, held liable for child support payments as a step-parent); and Re application of AMM and KJO to adopt a child [2010] NZFLR 629 (‘spouse’ includes de facto heterosexual couples). 38 Quilter v. Attorney-General [1998] 1 NZLR 523 1.

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set of beliefs or principles—rather than on simply a claim of being disadvantaged by discriminatory treatment—then they would have met the definition of conscientious objectors. Ultimately the court determined that it was bound by the traditional interpretation of marriage as construed in that Act; it fell to the legislature and not the court to change that interpretation. Two of the couples subsequently took their case to the UN HRC claiming that the ban on same-sex marriage violated the ICCPR but their claim was rejected.39 Not until the Civil Union Act 2004 was equality of rights for same sex and heterosexual couples established. This was followed almost immediately by the Relationships (Statutory References) Act 2005 which extended that principle to most other legislation. In 2013 the Marriage (Definition of Marriage) Amendment Act defined marriage in inclusive terms regardless of gender thereby enabling gay, bisexual, lesbian, trans-sexual and intersex marriages to be legal.40 It also resolved any ambiguity regarding trans persons and marriage. This issue had been brought before the court in M v. M41 which concerned the validity of a marriage of a trans person (mtf) who, following sex-reassignment surgery, had then married as a woman.42 The marriage was upheld as valid on the grounds that the surgery had been sufficiently extensive to achieve physiological gender transformation. In Attorney-General v. Otahuhu Family Court43 the court suggested that neither sexual capacity nor procreation were legally essential for marriage and consequently transformative surgery need not be required as there was “no social advantage in the law not recognizing the validity of the marriage of a transsexual in the sex of reassignment”. The court determined that an individual had the right to change their legal gender status without undergoing gender reassignment surgery. The divorce requirement was eventually repealed by the 2013 Act.

9.3.4

Medical Advancement: Contiguous Policy Development

The sequence of steps from oaths and military service, as traced above, that have marked out an evolving moral context for conscientious objection would seem poised to follow future advances in science and medicine. An indication of the scope for conscientious objection in relation to genetic modification, and the added complexities that may be brought to such matters by indigenous beliefs, arose in Bleakley v. Environmental Risk Management Authority44 when the High Court recognised that the Treaty of Waitangi imposed a duty on

39

Joslin et al v. New Zealand, Communication No. 902/1999, (2002). Note also, the Human Rights Commission, To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People, January 2008. 41 [1991] NZFLR 337 (FC). 42 See, further, MacKenzie (1992), pp. 557–558. 43 [1995] 1 NZLR 603. 44 [2001] 3 NZLR 213. 40

9.3 Conscientious Objection and Exemption: An Evolving Policy

441

the Crown to actively protect taonga which “embraces the metaphysical and intangible (e.g., beliefs or legends) as much as it does the physical and intangible (e.g. a treasured carving or mere)”. The case concerned the right of a government research facility to genetically modify certain Fresian cows, so as to allow milk production to include a human protein, a proposition which met with vigorous opposition from Mäori, and others, who objected to any such mixing of human and animal genetic material. In particular, the Ngati Wairere Mäori community claimed that any alteration of ‘whakapapa’ (genealogy) by mixing the genetic makeup of species would be deeply offensive and contrary to their ‘tikanga’ (custom); these were intangible taonga, any interference with which would constitute a breach of the Treaty of Waitangi. The court concluded that the relevant local authority was entitled to take the view that the only way to protect such taonga would be to refuse approval for the proposed project but, in the particular circumstances of this case, it was also entitled to regard the duty to protect as outweighed by broader considerations. The court upheld the earlier decision to grant approval notwithstanding Mäori conscientious objections. It has to be said that such an outcome is not unlike that of many in other countries where, despite the validity of the conscientious objection, on balance the court has determined in favour of the broader public benefit: a conscientious objection may be well founded, be sincere and have merit but when weighed in the balance against the public interest, it may well have to give way.45 In a pandemic context, such a balancing act acquires an acute urgency. This proportionality arguement also has traction in the context of balancing equally well grounded conscientious objections against the wish of an individual to seek a medically assisted death. Euthanasia, considered a crime under s.179 of the Crimes Act 1961 which described it as “aiding and abetting” suicide and punishable by up to 14 years imprisonment, is now a public health service. As might be expected, it was a transition strongly opposed by many including several religious orgnisations which registered their institutional conscientious objections—such as the Anglican and Catholic Churches—culminating in a joint submission by nine bishops to the Health Select Committee. Foremost of the points made in their submission was the argument that “New Zealand should not enact legislation that would establish medically-assisted dying as an authorised form of terminating life, thus undermining a fundamental ethical principle”.46 Dissent and conscientious objection in relation to this particularly polarising issue are set to continue (see, further, below at Sect. 9.8.1.2).

45

See, for example, Ryan v. Attorney General (1965) IR 294 when the Irish Supreme Court determined in favour of introducing fluoride into the nation’s drinking water, for reasons of dental health, despite the plaintiff’s conscientious objection. 46 See, further, Anglican Taonga: New Zealand’s Anglican News Leader, at: Anglicantaonga.org. nz.

442

9.4

9 New Zealand

From Policy to Legislation

Reverberations from the Christchurch mosque massacre of 51 persons in 2019 continue to challenge public policy in New Zealand.47 That a small, modern, relatively tranquil, multicultural nation should experience dissent being expressed with such vitriolic, home-grown violence causing the brutal deaths of so many fellow citizens has profoundly shocked and unsettled this democratic society. One consequence was the Terrorism Suppression Bill, which provided the authorities with broad surveillance and monitoring powers.

9.4.1

Universal Legislative Constraints

The universal requirements of the equality provisions in NZBORA and the HRA, reinforced by international treaties, conventions and protocols, have an unequal application: religious organisations are often automatically exempt; Mäori do not fully share with their non-indigenous fellow citizens the intended benefits of equality provisions; and an increasing range of religions and belief provide a corresponding broadening of the grounds available for exemption on the basis of conscientious objection.

9.4.1.1

Laws That Unfairly Burden a Minority

All of the above factors have a not dissimilar impact on each of the CANZUS nations, but may be felt more by minority groups in the confines of this compact and isolated jurisdiction. Mäori, being over represented across all indices of social disadvantage, are clearly not benefitting from relevant laws—governing education, health, social services etc—to the same extent as other citizens. Some laws, such as those governing adoption and foster care, have historically proven to be damaging to the Mäori culture and community.

9.4.1.2

Criminal Law Constraints

The Crimes Act 1961, ss.169 and 170, was amended by the Crimes (Provocation Repeal) Amendment Act 2009 which repealed provisions that allowed a defence of provocation to an alleged homophobic homicide.

47

See, further, at: https://www.bbc.co.uk/news/world-asia-53861456.

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443

Covid-19 Pandemic Constraints The Health Act 1956, as reinforced by the COVID-19 Public Health Response Act 2020, provided the legal framework for the issue of orders by the Director-General of Health. The constraints included the 2 m distance requirement when people were outside their homes, which was an enforceable part of the criminal law prohibitions in New Zealand48 (see, further, below).

9.4.2

Contemporary Government Initiatives

The Government is considering proposals to strengthen the law against the incitement of hatred and discrimination and is planning a public consultation exercise to elicit views. It is also currently engaged in a review and reform of the law relating to charities.

9.5

Legislative Framework: International and Domestic

The broad umbrella of the Treaty of Waitangi—te Tiriti o Waitangi—functions alongside the common law, statute law, international treaties and conventions. Collectively they provide a legal framework for the rights and conscientious objections of New Zealand’s citizens.

9.5.1

International Legislation

New Zealand has ratified a number of international conventions relating to non-discrimination and fundamental rights for all citizens, including minority groups.49 It is, for example, a signatory nation to the Universal Declaration of Human Rights, but not until 2010 did New Zealand decide to endorse the UN Declaration of Rights of Indigenous Peoples50 (see, further, Sect. 3.2.9).

48

See, McLean et al. (2021), pp. S197–S213. International Convention on the Elimination of All Forms of Racial Discrimination; International Covenant on Civil and Political Rights; International Covenant on Economic Social and Cultural Rights. 50 On 13th September 2007, the General Assembly adopted this landmark declaration outlining the rights of the world’s estimated 370 million indigenous people and outlawing discrimination against them: 143 Member States voted in favour; 11 abstained and four—Australia, Canada, New Zealand and the United States—voted against. 49

444

9.5.1.1

9 New Zealand

The International Covenant on Civil and Political Rights (ICCPR)

New Zealand judiciary and regulators place considerable reliance upon the ICCPR and the accompanying Human Rights Committee decisions and the guidance offered in its Comments. However, New Zealand has not incorporated the ICCPR into the New Zealand Bill of Rights Act 1990 (see, further, Sect. 3.2.3).

9.5.2

The Constitution and Federal Legislation

New Zealand does not have a written Constitution51 but it does have a body of law that serves constitutional functions.

9.5.2.1

The Constitution

Together with constitutional conventions, the following comprise a body of law with an overarching constitutional effect:52 the Treaty of Waitangi; the Constitution Act 1986; the Imperial Laws Application Act 1988; the New Zealand Bill of Rights Act 1990; and the Human Rights Act 1993.

The Treaty of Waitangi This founding document provided a broad statement of principles for establishing and guiding the relationship between the Crown and Māori. It offers a ‘constitutional’ basis for recognizing legal rights and for testing government policy in respect of all citizens but it “has to be seen as an embryo rather than a fully developed and integrated set of ideas.”53 Articles 2 and 3 provide protection for Māori culture: the first does so by reference, in the Māori version, to taonga, that is, ‘everything that is held precious’; the second by providing for Māori to have ‘the same rights as those of the people of England.’

51 See, further, at: http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/consider ation-of-constitutional-issues-1/members-of-the-constitutional-advisory-panel. 52 See, further, Ekins and Tomkins (2013). 53 New Zealand Māori Council v. Attorney-General, op cit, per Cooke P.

9.5 Legislative Framework: International and Domestic

9.5.2.2

445

The Abortion Legislation Act 2020

Introduced in March 2020, to amend the Contraception, Sterilisation and Abortion Act 1977 and the Crimes Act 1961, this legislation provides for the decriminalisation of abortion, aligns the regulation of abortion services with other health services, and modernises the legal framework for abortion. For the purposes of the Act, conscientious objection is defined as meaning ‘an objection on the ground of conscience to the provision of contraception, sterilisation, or abortion services’.

9.5.2.3

The Privacy Act 2020

Repealing and replacing the Privacy Act 1993, this Act strengthens privacy protections: it promotes early intervention and risk management by agencies; and enhances the role of the Privacy Commissioner. By providing measures to protect information against disclosure and misuse it may constrain whistleblowers.

9.5.2.4

The End of Life Choice Act 2019

The legislative intent of this Act is to give people with a terminal illness the option of requesting a medically assisted death.

9.5.2.5

The Marriage (Definition of Marriage) Amendment Act 2013

Amending the Marriage Act, this statute clarified that a marriage is between two people regardless of their sex, sexual orientation, or gender identity.

9.5.2.6

The Human Rights Amendment Act 2001

This restructured the Human Rights Commission and introduced additional safeguards against discrimination on grounds such as age, disability or sexual orientation in the policies and practices of government agencies.

9.5.2.7

The Employment Relations Act 2000 (ERA)

In conjunction with the Employment Contracts Act 1991 (now repealed) this legislation provides employees with the right to take allegations of discrimination to the Employment Court.

446

9.5.2.8

9 New Zealand

The Births, Deaths and Marriages Registration Act 1995

As amended by the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2009, the 1995 Act provides for the registration of information about births, adoptions, changes of name, sexual assignment and reassignment, marriages, civil unions, and deaths.

9.5.2.9

The Human Rights Act 1993 (HRA)

This statute amalgamated the Race Relations Act 1971 and the Human Rights Commission Act 1977. It prohibits discrimination on the basis of specified grounds which include sex or sexual orientation—though not specifically gender—in employment, in partnerships, in access to places, vehicles and facilities, in the provision of goods and services and in the provision of land, housing and other accommodation.

9.5.2.10

The New Zealand Bill of Rights Act 1990 (NZBORA)

This crucial statute declares in s.5 that “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits54 prescribed by law as can be demonstrably justified in a free and democratic society”. The right to freedom from discrimination is provided for in s.19 which states that for everyone this right is available on the grounds provided in the Human Rights Act 1993, while s.20 asserts the “rights of minorities”. Unlike equivalent legislation elsewhere, the 1990 Act is concerned with securing the freedom of the individual from arbitrary State intervention,55 it does not specifically include free-standing rights in relation to principles of dignity, personal autonomy or the liberty and security of the person. It applies only to the actions of government and to persons exercising public functions; where such actions are found to infringe the 1990 Act, the courts may issue “indications of inconsistency” requiring the attention of parliament.

9.5.2.11

The Constitution Act 1986

This is a major part of New Zealand’s primary constitutional legal infrastructure. It consolidated the institutional and statutory powers necessary to clarify its relationship with the UK government and monarchy and provided for more coherent domestic governance.

54 For judicial interpretation of what is meant by “reasonable limits” see Hansen v. R [2OO7] 3 NZLR 1 (SC). 55 Mendelssohn v. Attorney-General (1999) 2 NZLR 268 (CA) at p. 273.

9.6 Framework of Courts and Regulatory Bodies

9.5.2.12

447

The Race Relations Act 1971 (RRA)

This made incitement to racial disharmony a criminal offence and presaged the setting up of the Office of the Race Relations Conciliator in 1972, which was merged with the Human Rights Commission in 2002.

Other There is a considerable range of sector specific relevant legislation including: the Crimes Act 1961; the Private Schools Conditional Integration Act 1975; and the Employment Relations Act 2000 (which repealed the Employment Contracts Act 1991) and the Employment Relations Amendment Bill 2013. Also relevant are the recommended amendments to the deferred Births, Deaths and Marriages Registration Act 1995, suggested by the Government Administration Select Committee in 2018—permitting trans self-identification without evidence of medical intervention—and extending this right to 16 and 17 year old minors acting with the consent of parents and doctors. Also, the long history of recourse to conversion therapy will end should the Conversion Practices Prohibition Therapy Legislation Bill 2021 ever become law. This Bill proposes to create an offence for any person who advertises, offers, or performs conversion therapy on another person, or who removes another person from New Zealand for the purposes of conversion therapy.

9.6

Framework of Courts and Regulatory Bodies

The court and regulatory system of New Zealand operates as an independent, unified and self-contained juridical entity.

9.6.1

International Courts and Regulatory Bodies

New Zealand is subject to the monitoring processes of the treaties and conventions— in particular those established under ICERD and the ICCPR—to which it is a signatory nation. Since 2003 it has not been amenable to Privy Council appeal procedures.

448

9.6.2

9 New Zealand

Domestic Courts and Regulatory Bodies

The New Zealand legal system, a three-tiered model, closely resembles its British counterpart.

9.6.2.1

The Supreme Court

This is the highest court in the land and ultimate court of appeal. It determines issues where leave has been granted in the interests of justice or because the matter is one of general or public importance.56

9.6.2.2

The Court of Appeal

This court hears appeals from civil and criminal cases heard in the courts below—the High Court and the District Courts—including appeals on questions of law from the Employment Court, which determines cases relating to employment disputes or challenges to decisions of the Employment Relations Authority. Also relevant are the Māori Land Court and the Māori Appellate Court—Te Kooti Whenua Māori— which deal with Māori land matters, and the Environment Court with its remit for resource management, planning and development.

9.6.2.3

The Human Rights Commission (HRC)

Established by the Human Rights Act 1993, the Commission was subsequently restructured by the Human Rights Amendment Act 2001. Its main functions are: to provide advocacy and support for human rights, cultural diversity and for equal employment opportunities; to advise on the law and practice relating to the statutory grounds for unlawful discrimination; and to resolve or adjudicate upon any issues arising in the latter context.

9.6.2.4

The Human Rights Review Tribunal (HRRT)

The Tribunal is an independent judicial like body, separate from the Employment Relations Authority and Employment Court. A complaint regarding alleged discrimination begins with a dispute resolution attempt, if that fails then it is referred to the Office of Human Rights Proceedings, after which it goes to the HRRT which must rule on the complaint and may issue restraining orders, award monetary damages,

56

The Supreme Court Act 2003, s.13.

9.7 Fundamental Human Rights and Conscience

449

declare a breach of the Human Rights Act, or an inconsistency with NZBORA (which is reported to Parliament).

9.6.2.5

The Office of Human Rights Proceedings

Located within the Human Rights Commission, this agency provides free legal representation to complainants enabling selected discrimination cases to proceed to the Human Rights Review Tribunal.

9.6.2.6

The Employment Relations Authority

The task of interpreting and applying the Employment Relations Act 2000 falls to the Employment Relations Authority, the Employment Court and the New Zealand Court of Appeal.

9.6.2.7

Waitangi Tribunal

The Tribunal makes recommendations on claims brought by Māori relating to Crown actions which breach the promises made in the Treaty of Waitangi.

9.7

Fundamental Human Rights and Conscience

While the absence of an overarching written Constitution is perhaps a weakness, the Human Rights Act 1993 (HRA) and the New Zealand Bill of Rights Act 1990 (NZBORA) together provide a baseline of recognition and protection for fundamental human rights. The fundamental human rights to freedom of expression, association/assembly and religion/belief provide a particularly important context for conscientious objection.

9.7.1

Right to Freedom of Expression

This right is given specific recognition in NZBORA, s.14, which provides that “everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”. It is counterbalanced by the prohibition on hate speech under the HRA, ss.61 and 131, though the threshold for meeting the definition of such speech would seem to be set so high that there has only been one successful criminal prosecution. Moreover, the NZBORA right to speech is subject to reasonable limitations, prescribed by

450

9 New Zealand

law, that can be demonstrably justified in a free and democratic society (s.5) which increasingly involves the right to privacy,57 and is subject to public health, safety and security considerations.58 This broadly worded right—encompassing free speech, a free press, social media, the sharing of ideas and information—was examined by the Advertising Standards Authority in the case of ‘the dancing butchers’.59 It concerned what could be defined as a conscientious objection from representatives of the Hare Krishna community that a television commercial featuring a group of butchers dancing, singing and chanting along a street, in a mock imitation of Hare Krishna chants, constituted an abuse of their religious beliefs; particularly as the complainants were vegetarian. While that complaint was upheld on appeal, a more recent such objection from a Presbyterian pastor about the exclamation, “For Christ’s sake!” in a similar television commercial, was dismissed as it was found not to be blasphemous and did not merit State censure.

9.7.1.1

Personal Identity Issues

The Privacy Act 2020 includes many principles that govern the collection, use, retention and availability of personal information. The Births, Deaths, Marriages, and Relationships Registration Act 1995 is to be updated by a pending Bill of the same title which was deferred by the government early in 2019 to allow for more comprehensive consideration of the legal implications of a proposed gender selfdeclaration provision. This will allow gender diverse people to more easily change the sex specification on their birth certificates. Needless to say, SOGI related issues have generated objections from many individuals advocating for change in official processes that provide evidence of gender identity. While these—such as the plaintiff in Michael v. Registrar-General of Births60—cannot reasonably be defined as conscientious, many of those objecting are religious and can be so defined.

Indigenous People The increased prominence of Māori culture, and its political adoption to re-brand the national identity, has become a noticeable facet of life in modern New Zealand and 57

See, for example, Director of Human Rights Proceedings v. Slater [2019] NZHRRT 13. Author acknowledges advice from Steven Price on this matter (note to author: 14.10.21). 59 New Zealand Beef and Lamb Marketing Bureau 03/20 (ASCB, 11 March 2003); Appeal 03/10 (ASCAB, 28 October 2003). 60 (2008) 27 FRNZ 58. This case concerned Michael, a person born female who self-identified as male from an early age, dressed in male clothing from the age of 9 and had been sexually attracted to females since puberty. The court concluded that Michael could be given a new birth certificate reflecting his male gender. 58

9.7 Fundamental Human Rights and Conscience

451

one that has occasionally provoked controversy. In 2001, for example, the Foreign Affairs and Trade Ministry attracted considerable criticism for funding the travel of kaumatua (elders) to perform hikitapu or spiritual cleansing ceremonies in its embassies. This is indicative of the increasingly common recognition of Māori beliefs: for example, the use of karakia (prayers) to commence court proceedings or public meetings is now quite widespread. This practice, with parallels in the Christian tradition of saying prayers as a public rite on official occasions, was the focus of judicial attention in Mair v. Wanganui District Court.61 The case concerned an attempt by a Māori to utter a karakia during court proceedings, which met with short shrift from Heron J who dismissed an appeal based on a claim of conscientious objection and upheld a conviction for contempt of court. Arguably, however, being based on a cogent set of sincerely held religious beliefs, it meets the definition of a conscientious objection even if this was insufficient to overcome the charge of contempt.

9.7.1.2

Blasphemy and Proselytism

Expressions considered blasphemous were defined as such under the now repealed Crimes Act, s.123.62 In 2006 the Broadcasting Standards Authority considered a conscientious objection about an episode of the television cartoon series Southpark that contained images of the Virgin Mary which were perceived as offensive by many Christians. The authority dismissed the objection because “showing disrespect does not amount to the sort of vicious or vitriolic attack normally associated with the denigration standard”. Subsequent conscientious objections to the parodying of Christian and Muslim attitudes were similarly dismissed.63 Christian missionary activities among the Māori succeeded in converting many to Catholicism or to a variant of Protestantism but did not wholly displace Māori culture nor their traditional spiritual beliefs and community structure. To some extent proselytism is now in reverse as a resurgent pride in cultural identity is motivating some Māori to loosen their ties with Christianity. In contemporary New Zealand, however, references to proselytism are most often heard in the context of conscientious objections levelled at the evangelical Christian organisations which make a voluntary and concerted contribution to religious education in the nation’s primary schools (see, further, below at Sect. 9.8.3).

61

[1996] 1 NZLR 556 (HC). Repealed by s.5 of the Crimes Amendment Act 2019. 63 See the summaries in Human Rights Commission (2010), p. 75. Accessible online at http://www. hrc.co.nz/hrc_new/hrc/cms/files/documents/08-Mar-2010_14-17-15_HRC_RR_Report_2009web. pdf. 62

452

9.7.1.3

9 New Zealand

Whistleblowers

The legal framework for whistleblowing is provided by a combination of NZBORA, the Privacy Act and the Protected Disclosures Act 2000. This promises to be augmented by the Protected Disclosures (Protection of Whistleblowers) Bill.

Disclosures and the Law All public sector agencies must have in place a policy that outlines the process for making a public benefit disclosure of wrongdoing in the workplace. While such a disclosure should be made, in the first instance, to the employer in certain circumstances the Protected Disclosures Act allows direct disclosure to ‘appropriate authorities’ defined as: the Ombudsman; Commissioner of Police; Director of the Serious Fraud Office; and the Inspector-General of Intelligence and Security.

In a Public Service Context Of particular relevance to whistleblowing in this context is the Protected Disclosures Act 2000. However, few whistleblowing complaints reach the Employment Relations Authority. Instead many are foreclosed by the mediated settlement agreement, provided for under the Act. Under s.149, such agreements require participants to sign a non-disclosure or non-disparagement clause (NDA) which some warn can be used to effectively silence a whistleblower as was the case in TGP v. TFE.64 The Protected Disclosures (Protection of Whistleblowers) Bill may, as the title suggests, afford greater future protection for whistleblowers than the 2000 Act it will replace. The legislative intent is to: clarify the definition of serious wrongdoing and extend its application to cover private sector use of public funds and authority; enable people to report serious wrongdoing directly to an appropriate authority at any time, while clarifying the ability of the appropriate authority to decline or refer the disclosure; strengthen protections for disclosers by specifying what a receiver of a disclosure should do; clarify internal procedure requirements for public sector organisations and require them to state how they will provide support to disclosers; and clarify the potential forms of adverse conduct disclosers may face. However, there are some doubts as to whether it will achieve its goals coupled with specific concerns regarding a lack of clarity in its definitions of what constitutes “serious wrongdoing” and the actions or omissions that pose a “serious risk”.65

64

EmpC 60, 2015. See, further, at: https://theconversation.com/workplace-whistleblowers-deserve-more-protectionthan-nzs-new-law-will-deliver-158207.

65

9.7 Fundamental Human Rights and Conscience

453

In a National Security Context The priority given to the interests of national security relative to those of conscientious objectors is evident in s.6 of the Protected Disclosures Act 2000 which requires protected disclosures regarding classified information to be made only to the Inspector-General of Intelligence and Security (IGIS). It designates as a criminal offence the actions of anyone who holds a government security clearance, or who has been given access to classified information on a confidential basis, who wrongfully communicates, retains or copies classified information. It also extends the offence of publishing or broadcasting the identity of a New Zealand Security Intelligence Service (NZSIS) employee to cover employees of the Government Communications Security Bureau (GCSB). Employees (and former employees) of NZSIS and GCSB are prohibited from disclosing classified and/or intelligence and security information in an unauthorised way.66

9.7.2

Right to Freedom of Association/Assembly

The rights to peaceful assembly and freedom of association are protected by the ICCPR, Articles 21 and 22 respectively, to which New Zealand is a signatory nation. In addition, NZBORA, s.16, guarantees that “everyone has the right to freedom of peaceful assembly” while s.17 provides that “everyone has the right to freedom of association”. New Zealand Police v. Gary Thomas Chiles and Adrian James Leason67 concerned a protest against the New Zealand Defence Industry involving the defendants—who, most probably, can be fairly classified as social activists rather than conscientious objectors—and their obstruction of the public way contrary to s.22 of the Summary Offences Act 1981. Hastings J, noting that protest acts as a “safety valve that relieves the pressures inherent in any democracy”, found that the defendant’s acts were not unreasonable and they were not guilty of obstruction: they were exercising their right to protest; a common use of public passage.68

66

See, further, at: https://dpmc.govt.nz/our-programmes/national-security-and-intelligence/intelli gence-and-security-act-2017/whistleblowing-and-protecting-classified-information. 67 [2019] NZDC 3860. 68 Note, also, Beggs v. Attorney-General [2002] NZCA 204 and Morse v. The Police [2010] NZSC 45 both attracting a similar judicial response.

454

9.7.2.1

9 New Zealand

Corporate Entities

In the recent case of Hospice New Zealand v. A-G69 judicial notice was taken of the concept of ‘insitutionalised conscientious objection’ and of its relevance in a New Zealand context. The court then held that institutions may have “an entrenched moral ethos through which it operates” and therefore have a right to exercise its freedom of conscience.

9.7.3

Right to Freedom of Religion

NZBORA, s.13, provides that “everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference,” while s.15 declares that “every person has the right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private”.

9.7.3.1

Manifesting Beliefs

As with other NZBORA rights, the s.15 right is one that under s.5 “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Its exercise should be accommodated where feasible70 but may be “modified in the public interest to take account of the rights of others and the interests of the whole community".71 Further, s.13 of NZBORA extends protection to thoughts, opinions and matters of conscience. New Zealand, so far, has no legislative equivalent to the UK Racial and Religious Hatred Act 2006 which prohibits the inciting of hatred on the grounds of religion.

Religion Specific Clothing, Symbols, Customs etc By and large, manifestations of religious adherence in public have not given rise to much controversy let alone litigation in New Zealand. There have, however, been some such instances accompanied by conscientious objections.72

69

[2020] NZHC 1356, per Mallon J at para 103. Feau v. Department of Social Welfare (1995) 2 HRNZ 528. 71 Noort v. MOT [1992] 3 NZLR 260 at p. 283. 72 The Report of the Standing Orders Committee ‘Petition of Dr Anthony Hochberg and 9 others’ (relating to the parliamentary prayer) (15 June 2007) might be viewed as representing the collective conscientious objections of a majority of MPs to any alteration or removal of the overtly Christian prayer that opens parliamentary sessions. 70

9.7 Fundamental Human Rights and Conscience

455

In Police v. Razamjoo,73 for example, the issue concerned the wearing of the burqa when giving evidence in court proceedings: should the right to so manifest religious beliefs outweigh the justice requirement to be satisfied as to the veracity of a witness’s testimony? A district court in Auckland was called upon to resolve that issue when lawyers for the defence protested that two Muslim women were conscientiously objecting to requests to remove their burqas when giving evidence as Crown witnesses. The judge called for submissions on the matter, found that the women were motivated by sincere religious beliefs, and ultimately decided in January 2005 on a compromise: to require the burqas to be removed but allow screens to be used to ensure that only the judge, counsel and female court staff were able to observe the faces of the witnesses. The Hagley Community College debacle in 2005, which also centred on facilitating Muslims, gave rise to similar media generated controversy. The large Muslim cohort of pupils at this State secondary school in Christchurch conscientiously objected to the lack of a prayer room for their use and were successful in procuring public funds for the construction of such a facility, which prompted protest from others as to the propriety of using public funds for religious purposes. The New Zealand animal welfare code states that all animals commercially processed for human consumption must be stunned prior to slaughter but this attracted the conscientious objections of the Jewish community because kosher laws necessitate slaughter without stunning. In Nov 2010, the New Zealand Jewish community reached agreement with the Minister of Agriculture enabling the shechita of poultry to continue in New Zealand. Inevitably, the order issued by the High Court in Wellington giving effect to that agreement, attracted the conscientious objections of those who perceived this practice as cruel. BORA, s.15, was specifically extended under s.20 to provide protection for the cultural practices of minorities, consequently cultural manifestations are generally becoming more common as New Zealand workplaces introduce elements of tikanga Mäori such as policies that allow for karakia and waiata. Indeed, increased importance is now attached to Mäori spirtituality: some formal public meetings that might once have opened with a Christian prayer, may now do so with a mihi or karakia.

9.7.3.2

Indigenous Beliefs

In relation to Māori beliefs, the right to manifest—which is often tied to topographical features—can run into the obstacle articulated by Wild J as a “difficulty in following how beliefs can be regarded as a natural and physical resource, or how they can be sustainably managed”.74 The fact that “taonga embraces the metaphysical and intangible (e.g., beliefs or legends) as much as it does the physical and

73 74

[2005] DCR 408 (DC). Friends and Community of Ngawha Inc v. Minister of Corrections [2002] NRMA 401.

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intangible (e.g. a treasured carving or mere)”, as noted in Bleakly,75 ensures that judicial and regulatory efforts to identify, weigh and appropriately protect the Māori right to manifest their beliefs is often a torturous exercise that gives rise to correspondingly complex difficulties when determining what, in that context, might constitute religious discrimination or a conscientious objection. In 2002, for example, the conscientious objections of a Māori community stopped the construction of a major national highway which was ultimately rerouted in response to their protests that the projected route would disturb the lair of “Karu Tahi,” their local taniwha. However, there have also been cases which suggest that the Resource Management Act 1991 is ineffective in protecting Māori beliefs from being subordinated to State interests. In Mahuta v. Waikato Regional Council76 the court was not convinced by the Māori argument that a treatment plant discharging treated waste water would thereby pollute sacred land. Again, in Ngawha Geothermal Resource Company Ltd v. Northland Regional Council,77 the court in approving planning permission for a prison, dismissed the Māori conscientious objection that to do so would violate their belief that the land concerned was the domain of a revered spirit with the declaration that “none of us has been persuaded for herself or himself that, to whatever extent Takauere may exist as a mythical, spiritual, symbolic or metaphysical being, it would be affected in pathways to the surface or in any way at all by the proposed prison”.78 Clearly, there are difficulties in translating conscientious objections based on indigenous beliefs into an equivalent common law context, thereby enabling appropriate protection to be extended to the topographical features that for Māori may function as places of worship in the same way as churches etc do for Christians.

Affirmative Action NZBORA, s.19(2), states that: Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part II of the Human Rights Act 1993 do not constitute discrimination.

This and similar provisions in the HRA require, as a pre-condition, that any such measures are actually needed: the intended recipients must be disadvantaged relative to others; and they must need, or be reasonably supposed to need, assistance in order to achieve equality.79

75

Bleakley v. Environmental Risk Management Authority [2001] 3 NZLR 213. Op cit at n.28. 77 A117/2006 [2006] NZEnvC 290. 78 Ibid at p. 439. 79 See, Amaltal Fishing Co Ltd.v. Nelson Polytechnic (No.2) (1996) 2 HRNZ 225 and Avis Rent A Car Ltd v. Proceedings Commissioner (1998) 5 HRNZ 501. 76

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Conscientious Objection and Equality: Contemporary Caselaw

This country has in place a not untypical domestic platform of equality legislation including the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, the Privacy Act 2020, the Equal Pay Act 1972 and has introduced other legislative and policy frameworks to promote equality.80 Equality, as the Court of Appeal noted in the Quilter case,81 is one of the core principles underlying New Zealand’s law on discrimination, even though that law contains no express reference to it.

9.8.1

Public Health

The right of public health care professionals to refuse to engage in particular service provision on grounds of conscientious objection is clearly stated in s.174 of the Health Practitioners Competence Assurance Act 2003, NZBORA 1990, s.13, the Contraception, Sterilisation, and Abortion Act 1977, s.48, the End of Life Choice Act 2019 and in s.14 of the Abortion Legislation Act 2020. This statutory exemption privilege has to be balanced against the requirements of the Public Service Commission’s ‘Code of Conduct’ which is quite unequivocal:82 The work we do must not be influenced by personal beliefs or commitments. These personal interests can be wide-ranging, including party political, religious, philosophical, and vocational, and can be shaped by all sorts of experiences and upbringing. What we do in our organisation must reflect State Services standards of integrity and conduct and not be undermined by any personal conviction or particular ethical viewpoint we may embrace. . . We are never justified in . . . exercising our decision-making responsibilities in a way that suits our personal beliefs.

Public health facilities may include private hospitals if they are publicly funded and function as public health care providers, in which case their medical staff will be required to function accordingly and ensure public access to prescribed health services.83

80

Citizenship Act 1977; Immigration Act 1987; State Sector Act 1988; Ethnic Perspectives in Policy 2003. 81 Quilter v. Attorney-General, op cit. 82 Public Service Commission, ‘Understanding the code of conduct - Guidance for State servants’ at: https://www.publicservice.govt.nz/resources/code-guidance-stateservants/?e198¼140 6-impartial. 83 Alexander v. Police. (1998) 4 HRNZ 632 (CA).

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Abortion, Contraception IVF and Surrogacy

Under s.15 of the Abortion Legislation Act 2020, the law now declares that in relation specifically to the provision of contraception, sterilisation and abortion services, and as regards information or advisory services about whether to continue or terminate a pregnancy, an employer “must accommodate conscientious objection of applicant or employee unless it would cause unreasonable disruption”. As stated on the government website:84 A conscientious objection does not override a health practitioner’s professional and legal duty to provide prompt and appropriate medical assistance to any person in a medical emergency (including a surgical emergency). Practices should find the best ways to communicate objections for the benefit of both patients and health practitioners (eg, by providing this information on your website and in waiting rooms)

Under the 2020 Act, s.14(2)(b), a conscientious objector to service provision in relation to either contraception, sterilisation, abortion, or to related advisory information, must explain ‘how to access the contact details of another person who is the closest provider of the service requested’. Section 14(3) adds that ‘the closest provider’ is to be determined by taking into account: (a) the physical distance between the providers; and (b) the date and time that B makes the request; and (c) the operating hours of the provider of the service requested.

Abortion The history of conscientious objection in this context has been generally prohibitive85 indeed, for some five decades abortion has been treated in law as a criminal rather than a health matter.86 The propriety of requiring a conscientiously objecting doctor to refer a woman requesting an abortion to another doctor arose for consideration in Hallagan and Anor v. Medical Council of New Zealand.87 At issue in this case were proposed guidelines on beliefs and medical practices set out by the defendant, which required conscientious objectors to abortion to refer their patients to another unobjecting medical practitioner. The plaintiff medical practitioners sought judicial review of these guidelines, contending that they went beyond what the Council may lawfully require of medical practitioners, as legislation only says they must “arrange for the case to be considered and dealt with”. MacKenzie J held that the doctor does not have to provide a referral upon conscientious objection, but that “the health

84

See, further, at: https://www.health.govt.nz/our-work/regulation-health-and-disability-system/ abortion-legislation-information-health-practitioners. 85 See, for example, Halligan and Anor v. Medical Council of NZ, HC WN CIV-2010-485-222 (2010). 86 See, the Contraception, Sterilisation, and Abortion Act 1977 and the Crimes Act 1961. 87 HC WN CIV-2010-485-222 [2 December 2010].

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practitioner must inform the person who requests the service that he or she can obtain the service from another health practitioner or from a family planning clinic”. Further, the Council's proposed guidelines were held to “overstate the duty of a doctor with a conscientious objection, by failing to give adequate recognition to the ability of that doctor to decline to provide the service requested”. The court held that the guidelines must be amended to recognize the ability of health practitioners to refuse to refer a woman for an abortion by instead informing her that the service is available from another health practitioner or from a family planning clinic. This was followed shortly afterwards by the Supreme Court decision in Right to Life New Zealand Inc v. Abortion Supervisory Committee,88 which had serious implications for medical staff engaged in abortion procedures. The NZSC then confirmed that the Abortion Advisory Committee had the power to enquire into how the consultants involved in abortion procedures approached their decision-making in general (not in respect of any particular case). Should the Committee discover that a consultant’s beliefs, or lack of such, influenced their approach to the circumstances in which abortion should be made available, this could have had direct implications for their career prospects. Presumably a declaration of conscientious objection—by consultants or any other staff involved—would have carried the risk of such a penalty. The Abortion Legislation Act 2020 (amending the Contraception, Sterilisation and Abortion Act 1977) was introduced in March 2020. As mentioned above, provision is now made under s.14 for conscientious objection in relation to contraception, sterilisation, abortion, and to related advisory services as reinforced by the s.15 protection requiring employers to accommodate the conscientious objection of an applicant or employee unless it would cause unreasonable disruption. Further, additional protection is available under the s.15 prohibition against an employer taking certain actions on the basis that an applicant for employment, or an employee, who is qualified for work in connection with the provision of those services, has a conscientious objection. The “unreasonable disruption” caveat is of some concern because of its potential to conflict with the requirement to accommodate practitioners with conscientious objections; if numerically significant, those so accommodated could indeed disrupt service provision. It is feared that the net effect of such qualifications could potentially condition the free exercise of rights guaranteed under the Bill of Rights Act, including freedom of thought, conscience and religion, manifestation of religion and belief, freedom of expression, and rights of minorities. This legislation came under judicial scrutiny in New Zealand Health Professionals’ Alliance v. Attorney-General89 following a challenge from the plaintiff society that, in its own words, “advocates for freedom of conscience in healthcare”. The society took issue with the above-mentioned ss.14 and 15 which, it claimed, limited their rights under NZBORA to freedom of conscience, freedom to manifest religion, and freedom of expression. The court upheld the provisions. It ruled that

88 89

[2012] NZSC 68. [2021] NZHC 2510.

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health care professionals with conscientious objections must provide assistance to their patients as required by law: no limitations were imposed on any of the plaintiffs’ rights; and even if there were limitations they would be demonstrably justified in a free and democratic society. In a judgment that balanced the consciences of doctor and patient—not without implications for those similarly situated in the public health context of other countries—Justice Rebecca Ellis pronounced that: It is far from clear to me why - particularly in the case of the minimal and remote act required by s.14 - a proper interpretation of s.15 of the NZ Bill of Rights Act would permit the conscience of one individual either to restrict the exercise of conscience by another, or to limit access by women to a process that is not only lawful, but is grounded in their fundamental rights.

Contraception When, in 2013, a doctor conscientiously objected to a request for a prescription renewal for contraceptives—explaining that he believed women had a “reproductive duty” to bear children—he ignited a controversy90 that ultimately resulted in significant law reform. Under the Abortion Legislation Act 2020, a person who has a conscientious objection to contraception—including emergency contraception—is now not required to assist in its provision but must declare their objection as early as possible and advise how best to access the contact details of the closest service provider.

IVF and Surrogacy IVF is available under the Human Assisted Reproductive Technology Act 2004 but access is obstructed by a lack of coherent guidelines. Its use can give rise to complications particularly for Māori who place considerable importance on the purity of bloodlines. Interestingly, IVF is not included in the Abortion Legislation, s.19, list of matters the provision of which may be subject to the conscientious objection of medical staff. The 2004 Act also governs altruistic surrogacy which is legal in New Zealand— with the prior approval of the Ethics Committee on Assisted Reproductive Technology (ECART)—and prohibits commercial surrogacy. Under the Status of Children Act 1969 the birth mother is in law the recognised parent. Surrogacy has resulted in

See, Howie, C., ‘Women have Reproductive Duty, says ‘Rhythm Doctor’, The New Zealand Herald (14 July 2013).

90

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many lesbian couples raising children91 and being supported under the provisions of the Care of Children Act 2004, often following much litigation.92

SOGI Related Health Issues The routine practice of surgical intervention to ‘normalise’ children born with atypical sex characteristics has, arguably, been an effect rather than a cause of conscientious objections as religious parents are perhaps more likely to want gender conformity for their children. It’s a practice that has attracted adverse comment from the UN Committee on the Rights of the Child which in 2016 declared that “New Zealand is failing its obligations towards intersex people under the Convention on the Rights of the Child”.93

9.8.1.2

Medical Practitioners and Assisted Death

The law governing medically assisted death in New Zealand has been governed by the declaration in NZBORA, s.8, that “no one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice”. This right to life was transformed with the introduction of the End of Life Choice Act 2019 which took effect in November 2021.

Suicide While suicide has ceased to be illegal, any “aiding and abetting” the suicide of another remains illegal under s.179 of the Crimes Act 1961 and is punishable by up to 14 years imprisonment. This provision will cease when the 2019 Act comes into effect.

Refusing Medical Treatment NZBORA, ss.10 and 11, recognises the right of a mentally competent person to make an informed decision to refuse treatment. Similarly, formal patient instructions

91 See, in VP v. PM (1998) 16 FRNZ 61 where a lesbian mother retained custody of her two children. 92 See, further, Clifford (2016). 93 United Nations; Committee on the Rights of Child, The fifth periodic report of New Zealand, (2016) at p. 15. See further, at: http://intersex.shadowreport.org/public/2016-CRC-NZ-NGOZwischengeschlecht-Intersex-IGM.pdf.

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not to resuscitate are binding on medical staff and life support systems may be legally switched off with the consent of the patient or next-of-kin. However, where consent is not available and others seek to subsitute their decision on behalf of someone needing treatment, and do so on the basis of their religious beliefs, then the court may well become involved. For example, J (An Infant): B and B v. Director-General of Social Welfare94 concerned a threeyear-old boy whose need for a blood transfusion was opposed by his Jehovah’s Witness parents who objected on religious grounds to such treatment. Justifying the granting of a wardship order with permission to override the parental veto, the Court of Appeal rejected the conscientious basis of the parent’s protest with the comment that “the parents’ right to practice their religion cannot extend to imperil the life or health of the child”.95 Even where children of an age of discernment choose to agree with their parents’ religious views, to assert their own conscientious objection, and to reject treatment, the court may intervene to similar effect.96 This judicial approach gives rise to some uncertainty as to the age at which a young person may be refused access to contraceptives or abortion by a conscientiously objecting service provider acting in accordance with their religious beliefs.

Medically Assisted Death As elsewhere in the Part III jurisdictions, the journey to the legalisation of medically assisted death is one marked by conscientious objection cases for and against such provision.97 The End of Life Choice Act 2019, with effect from November 2021, introduced the right of persons with a terminal illness to request the option of receiving a medically assisted death. Section 8(1) provides that ‘a health practitioner is not under an obligation to assist any person who wishes to exercise the option of receiving assisted dying under this Act if the health practitioner has a conscientious objection to providing that assistance to the person’. This protection is reinforced by s.8(3) which prohibits an employer from imposing any penalty on such a practitioner ‘merely because the employee objects on the grounds of conscience’ to providing such assistance. In Hospice New Zealand v. A-G98 Mallon J found that it would be lawful for an organisation such as a hospice to conscientiously object on valid grounds to assisted dying and to operate a ‘euthanasia- free’ service, explicitly promising patients and their families and whānau that it will not provide any of the services set out in the Act, without exposing their practitioners to criminal prosecution. The court held that

94

[1996] 2 NZLR 134. Ibid at p. 146. 96 Auckland Healthcare Services Ltd v. Liu, High Court, Auckland, 11.7.1996, M812/96 and Auckland Healthcare Services Ltd v.T [1996] NZFLR 670. 97 See, for example, Seales v. Attorney-General [2015] 3 NZLR 556. 98 [2020] NZHC 1356, per Mallon J at paras 103–117 and 214. 95

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there was nothing in the End of Life Choice Act requiring institutions to offer the service of a medically assisted death. Effectively, each of the 33 hospices in New Zealand—and, presumably other facilities such as hospitals—would be entitled to refuse to provide such a service on the grounds of conscientious objection.

9.8.1.3

Blood and Organ Donations

The Organ Donors and Related Matters Bill amends the New Zealand Public Health and Disability Act 2000 to enable the New Zealand Blood Service to take on nationwide functions relating to organ and blood donation. There is a sense in which the conscientious gift of such a donor is the opposite to the withdrawal of a conscientious objector. The deferment period of 12 months of sexual inactivity, required before donations will be accepted from gay blood donors, is challenged by many in the LGBT community as consituting discrimination if not grounds for conscientious objection.

9.8.1.4

Vaccination

NZBORA provides protection for all human rights, including rights of privacy. Under s.11 “everyone has the right to refuse to undergo any medical treatment” which, presumably, includes the right to refuse vaccinations..

Law, Government and Vaccination in the Covid-19 Pandemic A recent Ministry of Health survey to determine prospective vaccination uptake found that a quarter (24%) of respondents were unwilling and another 16% unlikely to accept a “well-tested and approved” Covid-19 vaccine. Government imposed restrictions on its citizens in the context of the Covid-19 pandemic was therefore always going to be problematic. A curious feature of the pandemic has been the general absence of court cases challenging the range of State imposed constraints on the human rights of citizens. An exception was the case of Borrowdale v. Director-General of Health99 in New Zealand. This concerned government use of powers available to it under the Health Act 1956, s.70(1), enabling Medical Officers of Health to make orders requiring ‘persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit’.100 The government used this power, under s.70(1)(f) and (m), to issue three orders: prohibiting congregations and requiring the closure of non-essential businesses (March 2020); requiring all persons

99

[2020] NZHC 2090. See, also, the Epidemic Preparedness Act 2006.

100

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(with some exceptions) to be quarantined at home (April 2020); and a replacement for Orders 1 and 2, imposing largely the same restrictions (April 2020). The plaintiff—who could be viewed as a conscientious objector taking a stand, on clear and cogent principles, against what he perceived to be an abusive use of State power—claimed the orders were ultra vires and unlawful as government (the Director-General of Health) had exceeded the emergency powers available under s.70(1). The court found that the government had indeed acted beyond its ruleprescribed competences for the first nine days of the first lockdown: the requirement to stay at home, although justified on human rights grounds, was unlawful. As a guiding principle, it referred to the earlier ruling in Hansen and declared: the rights presently in issue are not absolute and “must accommodate the rights of others and the legitimate interests of society as a whole”,101 including the wider interest in protecting public health.

This determination highlights the fundamental difficulties facing a democratic society in a pandemic: the tensions inherent in balancing State intervention for the greater public good against the human rights of those whose basic freedoms must be constrained by that intervention. State interventionist powers have recenly been considerably reinforced. Firstly, the COVID-19 Public Health Response Act 2020 includes provisions authorising the police to enter private homes without a warrant, and provides for authorised persons—not only police—to enter marae without prior consent.102 Secondly, in April the government introduced the COVID-19 Public Health Response (Vaccinations) Order 2021,103 s.3 of which states its purpose as being ‘to prevent, and limit the risk of, the outbreak or spread of Covid-19 by requiring work at certain places to be carried out by affected persons who are vaccinated’. Applied with immediate effect to all workers in managed isolation and quarantine (MIQ) facilities and those who work for government agencies at the border—an interesting political prioritising of groups warranting mandatory vaccination—it resulted in 9 border staff being dismissed for vaccination refusal. This Order was unsuccessfully challenged in GF v. Minister of COVID-19 Response104—though not on grounds of conscentious objection—when the court found that to the extent that the Order infringed the rights protected by ss.11 and 19 of NZBORA, the infringement was no more than was justified in a free and democratic society. It remains to be seen whether the Order will be extended to other staff in the public sector and, if so, to whom and with what prioritisation.

101

R v. Hansen [2007] NZSC 7. See Human Rights Commission, ‘Human rights and te Tiriti o Waitangi: COVID-19 and alert level 4 in Aotearoa New Zealand’, (2020). 103 See, further, at: https://www.legislation.govt.nz/regulation/public/2021/0094/latest/LMS4 87853.html. 104 [2021] NZHC 2526. Author thanks Dean Knight for drawing this case to his attention (note to author, 19.10.21). 102

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465

Social Care Services

The delivery of family and community support services is generally more likely to fall to agencies in the nonprofit sector—religious organisations, charities and other voluntary organisations—which, though often government funded, are not as strictly subject to public service regulations and codes of conduct. This provides a more accommodating context for discretionary decisions by agencies and their staff.

9.8.2.1

Adoption and Foster Care

The placement of Māori children with Pākehā families for adoption or fostering purposes generated many conscientious objections from the Māori and became a source of acute tension between indigenous and non-indigenous communities in the mid-twentieth century.

Service Refusal As in other countries, adoption and foster care services—reflecting the religious values and social mores of their time—were often only available on an exclusionary basis that generated conscientious objections from those who perceived themselves as the victims of discrimination. For example, in Re Application by AMM and KJO to adopt a child105 the unmarried applicants conscientiously objected to the wording of the Adoption Act 1955 which required adopters to be “spouses”. The female plaintiff was the child's birth mother, the child was born by means of donor insemination and the genetic father was unknown. The male applicant had lived with the mother for 10 years and had been the child's father-figure from the age of 18 months. The court found that the anti-discrimination provision of the NZBORA, and in particular the marital status ground,106 would be breached if adoption was restricted to married couples, and issued the adoption order. Similarly, in Re Pierney and Hsieh107 when McHardy J in the Auckland Central Family Court interpreted “spouse” to include same-sex de facto couples.

105

[2010] NZFLR 629. New Zealand Bill of Rights Act 1990, s.19, with the anti-discrimination grounds appearing in Human Rights Act 1993, s.21. 107 [2015] NZFC 9404, [2016] NZFLR 53. See, also, Adoption Action Incorporated v. AttorneyGeneral [2016] NZHRRT 9. 106

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Social Care Facilities and Benefits

In recent years there has been considerable contention, protest and litigation in relation to welfare benefits payable to carers and also to people suffering from a permanent disability. One such matter was adjudicated in Nevin v. Benefits Review Committee108 which concerned a disabled man in longterm employment as a school cleaner/gardener whose minimum wage was supplemented by financial assistance from the Ministry of Education in the form of a general operational grant. In 2010 the Ministry decided that such subsidies should be terminated which meant that the employment of the school cleaner/gardener and many others in a similar position would cease as their employers would be unable to make good the wages shortfall. The regulatory body determined that the Ministry’s change of policy had the effect of excluding people with a permanent disability from appropriate and needed support breached the plaintiff’s human rights as it was incompatible with his human dignity. Although litigated as a straightforward discrimination case, the plaintiff’s protest could also, perhaps, be read as a conscientious objection to the exclusive effects of a value system.

9.8.2.3

Public Officials: Marriage Registrars etc

Official State policy in relation to the duties of public officials, as stated above in the Code of Conduct, would appear to leave no room for public officials to exercise any degree of conscientious objection in relation to any aspect of their official duties.

Marriage Registrars The protest of a lesbian couple against a domestic court’s refusal to grant them a marriage licence was a protest against the law which, at that time, reflected the prevailing religious/cultural ethos. However, the subsequent decision of the UN HRC in Joslin v. New Zealand,109 to uphold the court’s ruling seemed to refute the rationale asserted by the ECtHR decision 20 years previously in Dudgeon.110 Both cases featured the same conscientious objection to laws which defended traditional religious values and thereby discriminated against same sex relationships, but the New Zealand challenge failed as the UN CRC chose to defend the morality of the majority.

108

[2019] NZSSAA 13. Communication No 902/1999, (2002). 110 Dudgeon v. United Kingdom Application No. 7525/76, (1981). 109

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Other Public Officials The obligation to perform jury service when required to do so can be refused on the grounds of conscientious objection. This privilege is available under s.15(2)(a) of the Juries Act 1981 to those who are “a practising member of a religious sect or order that holds service as a juror to be incompatible with its tenets”. In addition, s.58 of the Evidence Act 2006 continues the long-standing exemption for clergy or other persons holding positions of trust in spiritual communities from testifying on matters confided to them as part of their spiritual function (except where such confidences contribute to the commission of crimes).

9.8.3

Public Education

The national education system was established by the Education Act 1877, continued under the Education Act 1964—introduced at a time when the prevailing culture was overwhelmingly white Christian and decidedly Eurocentric—and is now governed by the Education and Training Act 2020. Fundamental population changes in the latter half of the twentieth century brought great diversity to the nation’s classrooms and the resulting tensions between the provisions of the 1964 Act and the Bill of Rights Act 1990 resulted in a regular stream of conscientious objections from non-Christian or secular parents protesting about a pervasive religious/cultural ethos that did not reflect or proportionately accommodate their beliefs. So, for example, to the KidsKlub lunchtime sessions run in accordance with Scripture Union principles, and the ‘Bible in Schools’ programme, feature in many primary schools and are a source of contention for some. The 2020 Act may ameliorate such tensions.

9.8.3.1

Schools, Teachers and Parents

There are three main types of schools in New Zealand, providing education at primary and secondary levels, including immersion in Māori language and culture: State (public) schools (catering for approx. 85% of all students); State-integrated, mainly Catholic (12%); and private or independent schools.111 Māori language and culture is available in many schools, in educational institutions such as kohanga reo, kura kaupapa and wananga, and is provided for in Māori immersion schools. There have been concerns regarding access of children with disabilities to primary and secondary State schools in breach of s.19 of NZBORA.112

111 112

See, New Zealand Ministry of Education, ‘Roll by Education Regional & Authority’, 2015. See, IHC New Zealand v. Attorney-General (Strike-Out Application) [2020] NZHRRT 47.

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Religion Specific Clothing: Teachers NZBORA —sections 13, 15, and 19—provide respectively for the right to freedom of thought, conscience, religion and belief, the right to manifest such, and the right to be free from religious discrimination; in short, schools may not discriminate, nor permit discrimination, on the grounds of religious belief or the lack of it. There is an expectation that in settings such as the workplace or classroom the wearing of a headscarf, turban or other form of religious clothing will be accommodated—subject to health and safety concerns.

Religion Specific Clothing: Pupils The right to manifest religious beliefs, provided for under s.19 of NZBORA, may take the form of pupils wearing a religion specific item such as a headscarf, kirpan or crucifix. However, the difficulties encountered particularly by Muslim immigrants who find the school regime conflicting with their religious/cultural requirements regarding prayers, dress, mosque attendance, gender separation etc have been well documented.113

Prayers, Symbols and Religious Ceremonies etc The Education Act 1877, s.84(2), declares that “teaching shall be entirely of a secular character” but this has not prevented the school environment from accommodating ongoing reminders of the education system’s Christian foundations.

Indigenous Children Issues In New Zealand, as in the other CANZUS nations, the State/Church imposition of residential schools for indigenous children as a means of facilitating an assimilationist policy proved—as intended—to be disastrous for indigenous culture and traditional beliefs. The consequences of the Native Schools Act 1867 generated a flow of Māori conscientious objections for subsequent generations.

SOGI Related Issues In 2010 the HRC received a complaint from a gay netball coach who was fired from a Christchurch Christian school. The 28-year-old man was employed as a girls’ netball coach but was dismissed by the board of trustees after members discovered

113

See, for example, Humpage (2009), pp. 73–82.

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his sexual orientation. The school principal said that the board had decided the coach’s homosexuality was a problem which, given the explicit governing religious beliefs, could reasonably be interpreted as indicative of institutional conscientious objection. The sacked coach complained to the Commission and the matter was resolved through mediation.114 It is possible that the controversy generated by the installation of gender-neutral bathrooms in schools is similarly indicative.115

9.8.3.2

Educational Content

Christian values and principles are woven as much into New Zealand education as into its music, art, politics and other cultural manifestations. A 2015 independent academic examination of the content of certain teaching materials (Launch 1, Launch 1: Teacher Book, Life Choices and Life Choices: Teacher’s Manual), found that they were unsuitable for the religiously diverse environment of contemporary New Zealand.116 The report referred to an explanation in the Teacher Book that the purpose of the course was to learn the “foundational truths of the Christian faith” (“that there is a God, that God loves and cares for them . . . that they are able to talk to God”, and that “Jesus is God’s son”). The aims included being made aware that “their lives can be changed through meeting Jesus”. Teachers were encouraged “to pray with the students” and prayers are suggested to end each session. In Launch 1, biblical stories were utilised to provide lessons for everyday life and for central religious practices including the group recitation of the “Words of Wisdom”, such as Proverbs 3:6 (“Remember the Lord in everything you do and he will show you the right way to live”). Teachers were encouraged to reinforce particular messages such as that students should “please and obey God” and “think about God in everything they do”. In Life Choices, the use of the Bible was viewed as uncritical and as promoting an uncritical reading of scripture as text. In short, the teaching material was deemed unsuitable as being “at odds with the diverse religious demography of our country where nationally a minority are Christian and an even smaller minority are conservative evangelical Christians”. It is difficult not to interpret this academic assessment as inferring that the surveyed educational material reflects an approach by the State that favours Christians to the detriment of others and is thus systemically conducive to attracting conscientious objections from those of other beliefs and none.

114

See, further, at: http://www.neon.org.nz/trackingequalityatwork/sexualorientation/. See, further, at: : https://www.stuff.co.nz/dominion-post/news/wellington/77457959/welling ton-high-onslow-college-get-genderneutral-bathrooms. 116 See, Morris, P., ‘Review of Christian Education Commission teaching materials’, 2015, at: http://religiouseducation.co.nz/wp-content/uploads/2015/08/PAUL-MORRIS-REVIEWS-2-CECSYLLABUSES.pdf. 115

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SOGI Related Curriculum Content Government has declared sexuality education to be one of seven key areas of learning in the health and physical education learning area of ‘The New Zealand Curriculum’ and has mandated it for inclusion in teaching programmes at both primary and secondary school levels.117

9.8.3.3

Faith Schools

The HRA, s.58(1), provides for educational establishments to be maintained wholly or principally for students of one religious belief while s.22(2) specifically allows appointments under the Private Schools Conditional Integration Act 1975 to be limited to one sex or to be made in accordance with the religious beliefs of the school. A number of religion specific private schools—mainly Anglican, but also Presbyterian and some Catholic—have retained their independence by continuing to rely on a fee-paying student intake rather than solely on government funding. This arrangement gives rise to conscientious objections from secularists who argue that rather than subsidise elective religious discrimination the State should encourage faith schools to be wholly funded by their respective religious communities.

9.8.3.4

Colleges/Universities

Tertiary education is mainly available through eight universities, 16 polytechnics and institutes of technology. The decision of Auckland University of Technology in July 2019 to cancel a student-organized seminar commemorating the 30th anniversary of Tiananmen Square attracted many objections. This may be linked to the intimidation experienced by a prominent China studies professor at the University of Canterbury, from late 2017 and throughout 2018, who had been critical of the Chinese Communist Party. The objections of that academic and others, if grounded in a principled rejection of Chinese political ideology and the autocratic suppression of its citizens, may well fall within the definition of “conscientious”.

See, New Zealand Ministry of Education, ‘Sexuality education in The New Zealand Curriculum’ at: http://health.tki.org.nz/Teaching-in-HPE/Policy-guidelines/Sexuality-education-aguide-for-principals-boards-of-trustees-and-teachers/Sexuality-education-in-The-New-ZealandCurriculum.

117

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LGBT Related Issues Universities and colleges in New Zealand have a well earned reputation for providing support systems for LGBT students and staff. This approach probably owes a lot to an established Māori acceptance for those who identify as takatāpui and a similar familiarity with the prevalence of transgenderism among the Samoan community.

Affirmative Action NZBORA, s.19(2), provides for exceptions to the prohibition on discrimination in respect of “measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination”. This and similar provisions in the HRA require, as a pre-condition, that any such measures are actually needed: the intended recipients must be disadvantaged relative to others; and they must need, or be reasonably supposed to need, assistance in order to achieve equality. Such ‘positive discrimination’ measures are at times deployed in favour of socially disadvantaged Māori and are liable to provoke conscientious objections from those who protest that they have consequently been relatively unfairly treated.

9.8.4

Public Defence and Security

Compulsory national service was abolished by the Volunteers Employment Protection Act 1973, s.16, and ever since conscientious objection has ceased to be an issue in this context. However, the courts have ruled that an unreasonable intrusion into rights in a civilian context may not be unreasonable in the context of national defence service.118 In keeping with other common law jurisdictions, New Zealand’s domestic public policy has responded to global terrorist threats with legislation that necessarily impacts upon the freedoms of a democratic society. The Terrorism Suppression Act 2002 contains a range of procedures relating to the protection of human rights and observance of international obligations. These have been bolstered by the Countering Terrorist Fighters Legislation Act 2014 which allows the Security Intelligence Service to carry out surveillance and interception operations in respect of local Islamic State supporters. Most recently, further State intervention is been authorised by the Counter-Terrorism Legislation Bill 29-1 (2021). All of which is giving rise to increased misgivings about potential breaches of civil liberties as the police now have extensive powers to justify intrusion into private homes and business premises.

118

R v. Jack [1999] 1 NZCMAR 324.

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9 New Zealand

Military Issues

Conscientious objection to national conscription was most obviously an issue for law and public policy during both World Wars. Under the Military Service Act 1916 exemption was very restricted, discriminating in favour of religions that had already established pacifism as a belief—most notably Quakers and Seventh-day Adventists. The beliefs of all others—whether grounded in religion, politics or philosophy— were ineligible for the status of conscientious objector. This led to a greater proportion of men of military service age being detained or imprisoned than in any other common law country. In practice much the same approach was adopted in WWII, although in theory greater latitude was available to exempt those of other religions or who objected on ethical grounds. Instead of adjudicating on the basis of an individual’s beliefs, religious or otherwise, the regulatory authorities placed great weight on church membership and on whether that church had established pacifist beliefs.

Service in the National Armed Forces Any specific statutory reference to conscientious objection to military service was abolished with national service in 1973. Currently, the absence of any statute explicitly governing conscientious objection is accompanied by the absence of any related caselaw.

Transgender Military Personnel Inclusion in the New Zealand Defence Force has not been problematic for lesbian, gay, bisexual and transgender personnel since 1994. The NZDF was recognised as the world’s most LGBT+ inclusive national military force in 2014.

9.8.4.2

Prisoners and Asylum Seekers

The rights to be heard, to be legally represented and to conscientiously object are perhaps of particular importance to those already confined by State authorities.

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473

Prisoners In 2015, a trans person (mtf) was placed with male inmates in an Auckland prison where she allegedly suffered a sexual assault.119 The authorities responded by placing her in solitary confinement to which she objected, though on the face of it not conscientiously. Nonetheless, such a singling out of a trans person was discriminatory and the resulting increase in the prescribed level of punishment could be viewed as contrary to the benchmark for cases concerning the rights of prisoners as established in Taunoa v. Attorney-General.120

Asylum Seekers New Zealand is a signatory State to the Convention Relating to the Status of Refugees 1951 (see, further, Sect. 3.2.10). The related refugee caselaw, in common with that of other such States, is clustered around the Convention’s key definitional terms. In addition the Immigration Act 2009, s.207, states that ‘exceptional circumstances of a humanitarian nature’ provide valid grounds of appeal against deportation. The Human Rights Commission has raised concerns regarding the dissemination of information sufficient to enable refugees to access services such as interpreters, housing, and English language instruction. A central Convention term is ‘a particular social group’ the meaning of which was examined in Re GJ121 when the Refugee Status Appeals Authority found that because sexual orientation is a characteristic which is either innate or unchangeable, or so fundamental to identity or to human dignity that an individual should not be forced to forsake or change the characteristic, it can therefore form the basis for the existence of a particular social group. This case concerned a gay man who claimed to fear SOGI related persecution if he were returned to his native Iran. The Authority judged it crucial to establish whether homosexuals in Iran constituted a particular social group for Convention purposes. It therefore received and reviewed at length considerable expert evidence which demonstrated that because homosexuals were reviled by the Iranian authorities, discriminated against122 and singled out for the most severe punishments including execution, such persons could be held to come within the intended meaning of that Convention term.123 By way of copper-fastening its reasoning, the Authority warned that it would be unreasonable to expect a gay person to avoid being classed as a member of such a group by concealing his homosexuality because “to expect of him the total denial of an essential part of his

119

See, further, at: https://www.rnz.co.nz/news/national/286022/alleged-prison-assault-victimtrans-woman. 120 (2004) 7 HRNZ 379 (HC). 121 Refugee Appeal No. 1312/93, (1995). 122 Ibid, citing Refugee Appeal No. 3/91 Re ZWD (20 October 1992) paras. 70–73. 123 Ibid, paras. 59–85.

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identity would be both inappropriate and unacceptable”.124 This rationale was subsequently applied, achieving the same effect, by the Immigration and Protection Tribunal in the similar case of AO (Pakistan).125 The Convention requires that a refugee’s ‘fear of persecution’ on being returned to their country of origin must be ‘well-founded’. The importance of establishing this, by objective standards, was demonstrated in AM (Egypt)126 when the Tribunal held the gay claimant had a well-founded fear of being persecuted in Egypt because his sexual orientation constituted membership of ‘a particular social group’ the members of which were exposed to harm as men suspected of being gay in Egypt were at risk of being subjected to imprisonment and serious physical abuse. A ‘wellfounded fear of persecution’ also provided successful grounds for appeal against the deportation of a married female couple in Re Devi, Sangeeta.127 They were able to convince the Tribunal that the difficulties they would experience if they were to be returned to Fiji—in living openly as a gay couple and caring for a teenage daughter—would make their deportation unjust and unduly harsh. This rationale is not wholly dissimilar to that adopted by the Court of Appeal in Kim v. Minister of Justice128 when the court took the view that refusing a request to extradite the plaintiff to China was justified because China’s criminal justice system was so inimical to western principles of justice that no guarantees from China could satisfy the court that the plaintiff would receive a trial that would be fair in accordance with western standards of justice.

9.8.5

Employment

The employment context is one in which the employer/employee relationship is constantly being re-negotiated in the light of changing circumstances. On such occasions or at times of particular pressure—changes in the workplace environment or changes in relationships between workers—there can be allegations of unfair conduct or of discrimination, some of which may constitute conscientious objection.

9.8.5.1

Right of Employers to Hire and Fire

As a universal provision with general and uniform application, the HRA, s.22(1)(c), stipulates that it is unlawful for an employer to terminate the employment of an

124 Note that the ICCPR, Articles 2, 17, and 26 entitle an asylum appellant not to have to suppress their sexuality in order to avoid persecution. 125 [2013] NZIPT 800322. 126 [2014] NZIPT 800656. 127 [2015] NZIPT 501973. 128 [2016] NZHC 1490, [2016] 3 NZLR 425.

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employee by reason of the employee’s religious beliefs (in circumstances in which the employment of other employees employed on work of that description would not be terminated). Curiously, s.27(2) allows for discrimination ‘based on sex, religious or ethical belief, disability, age, political opinion, or sexual orientation where the position is one of domestic employment in a private household’. This law of universal application is, however, subject to ‘institutional conscientious objections’.

Religious Organisations Legislation clearly establishes the right of religious organisations to hire and fire staff on the basis of a conscientious objection to conduct perceived as non-compliant with the beliefs of that organisation. For example, s.28 of the HRA provides specific ‘exceptions for purposes of religion’ to the statute’s anti-discrimination provisions but its scope is uncertain due to both the broad legal interpretation now given to ‘religion’ and to Mallon J’s generous interpretation in Liberty Trust129 of activities that may be seen as ‘outworkings’ of religious faith. Exemption is also available under the Marriage Act 1955, s.29, as amended by the New Zealand Marriage (Definition of Marriage) Amendment Act 2013, through the addition of ss.2, to excuse churches and clergy from the obligation to solemnise marriages contrary to their religious beliefs. A similar exemption exists in relation to religion and conscience in the Contraception, Sterilization and Abortion Act 1977, s.46. The ‘institutional conscientious objection’ granted to religious organisations is also evident in the HRA provision allowing churches to discriminate on grounds of sex (including sexual orientation) with respect to the appointment of clergy to parish positions; though not to lay people e.g. those doing pastoral work. The HR Review Tribunal hearing of the Gay and Lesbian Clergy AntiDiscrimination Society Inc v. Bishop of Auckland130 concerned a gay man who conscientiously objected to being barred from training to become an Anglican priest, allegedly because he was in an ‘active’ homosexual relationship, and claimed he had been discriminated against for that reason. To become a priest in the Anglican Church an applicant must be single and celibate, or in a heterosexual marriage, which the court found to be a valid requirement notwithstanding the introduction of the Marriage (Definition of Marriage) Amendment Act 2013. It further found that s.39(1) provided an exemption for the Church (and all organised religions) in their ordaining of ministers, an exemption that was unaffected by the 2013 Act. The plaintiff’s claim of indirect discrimination on the grounds of sexual orientation was dismissed. Arguably, the position of both parties could be characterised as one of mutually opposing conscientious objections.

129

Liberty Trust v. Charities Commission, [2011] NZHC 577. [2013] NZHRRT 36. See, further, at: http://www.justice.govt.nz/tribunals/human-rights-reviewtribunal.

130

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Secular Organisations The focus on an “employee’s religious beliefs” in the above-mentioned s.22(1)(c) of the HRA is open to misinterpretation as such beliefs, being susceptible to sublimation, are liable to be expressed in a form not overtly religious. So, for example, in the context of an employer/employee relationship, one party may express a value based judgment regarding a SOGI related matter and trigger a genuine conscientious objection from the other; the views of both being grounded in religious belief. In Nakarawa v. AFFCO New Zealand Ltd131 the religious beliefs of a casual employee prevented him from working between sunset on Friday and sunset on Saturday. When he explained this conscientious objection to his employers he was advised that his unwillingness to work on Saturdays did not meet the needs of the company, he was told that he should go home and was offered no further shifts. In the resulting hearing before the HRR Tribunal, Affco’s actions were found to breach s.22(1)(c). Similarly, Meulenbroek v. Vision Antenna Systems Ltd132 concerned an employee who had rejoined the Seventh Day Adventist Church and in keeping with his religious beliefs, but contrary to his contract requirements, he then declined to work on Saturdays and was duly dismissed. Again the employer’s actions were found to breach s.22(1)(c). More recently, the plaintiff in Satnam Singh v. Shane Singh and Scorpion Liquor133 was an Indian national and a Sikh who conscientiously objected to being treated with ridicule and abuse in the workplace because of the beard and clothing he wore in accordance with his religious beliefs. Following continuous and serious racial harassment by his manager the plaintiff was forced to leave. Ultimately, the Tribunal concluded in the plaintiff’s favour, but solely on the basis of racial harassment.

SOGI Related Issues Discrimination on the grounds of sexual orientation is prohibited under NZBORA, s.19, and the HRA, s.21. Where discrimination is alleged, the onus rests on the employer to show justification on grounds of ‘exception’134 or ‘good reason’;135 under s.97, a ‘genuine occupational qualification (GOQ)’ would constitute justification but only if the employer can show a functional link between the GOQ and the job requirements.136 The Employment Relations Authority records a SOGI related

131

[2014] NZHRRT 9. [2014] NZHRRT 51. 133 [2015] NZHRRT 8. 134 Human Rights Act 1993, s.92F(2). See, Claymore Management Ltd v. Anderson [2003] 2 NZLR 537. 135 Human Rights Act 1993, s.65. 136 Claymore Management Ltd v. Anderson, op cit. 132

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case in 2007 which concerned an Auckland publishing company employee who objected—though, on the face of it, hardly conscientiously—to hurtful infantile teasing in the workplace about his being gay.137 Again, in Hemmingston v. Swan t/a Barker’s Groom Room,138 the alleged unfair dismissal of a trans woman who worked as a hairdresser by her employer, because the latter had decided that the transition did not suit the business, was almost certainly discriminatory but—in the absence of additional information—neither party would seem to be in a position to claim a conscientious objection. By way of contrast, at much the same time in the U.S., in not dissimilar circumstances, a court found that an employer’s unfair dismissal of his transgender employee was attributable primarily to the employer’s religious beliefs; a frame of reference which permits the objections of both parties to be fairly classified as conscientious.

9.8.5.2

The Workplace

The HRA, s.28(3), requires employers to accommodate the religious or ethical belief practices of an employee as long as any adjustment required ‘does not unreasonably disrupt the employer’s activities’.139

Undue Hardship As noted in Nakarawa: The term “unreasonably disrupt the employer’s activities” is a relative term and cannot be given a hard and fast meaning. Each case will necessarily depend on its own facts and circumstances and it will come down to a determination of “reasonableness” under the unique circumstances of the particular employer-employee relationship.

This ruling, followed in Meulenbroek, is particularly important because the Tribunal then emphasized that the HRA requires employers to accommodate the religious practices of employees, subject to unreasonable disruption. In Nakarawa, the Tribunal held that Affco had made “no attempt whatever” to accommodate the employee's religious practices, nor did it attempt to enter into discussion or dialogue with the employee over the issue. In Meulenbroek, the Tribunal found that Vision had not established that the necessary adjustment of its business activities to accommodate the complainant would be unreasonably disruptive and noted that “it is clear that staff and contractors were . . . of the view that religious beliefs should not

137

See further at: https://www.nzherald.co.nz/business/news/article.cfm?c_id¼3&objectid¼10 531484. 138 [2016] NZERA Auckland. 139 This requires an evaluative analysis of the reasonableness or proportionality of the employer’s response: Smith v. Air New Zealand Ltd [2011] 2 NZLR 171, at para. 161.

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get in the way of work. But this is precisely the point of s.28(3) of the HRA”.140 Essentially, it is incumbent upon employers to obviate the need for conscientious objections in the workplace by facilitating employees religious beliefs unless it is clearly evident that doing so would cause serious disruption.

Sincerity of Belief A conscientious objection must be inspired by sincerity of belief and not by motives such as personal choice or convenience. In Satnam Singh, for example, the Tribunal had been impressed by the plaintiff’s efforts to placate his manager and stop the racist abuse by trimming both his hair and beard and wearing a small turban concealed by a cap. This in turn had led to his father largely disowning him for bringing dishonour to the family by compromising his “Sikhness”. He had demonstrated the sincerity of his beliefs by maintaining his loyalty to Sikh customs despite considerable stressful pressure.

9.8.6

Commercial Services

The Human Rights Act 1993, s.44, prohibits discrimination in the provision of goods and services.

9.8.6.1

Goods and Services

The protection available under the HRA, s.44, was illustrated in Hemmingston v. Swan t/a Barker’s Groom Room.141 This concerned the objection of a trans (mtf) person who had allegedly been unfairly dismissed from her job as a hairdresser. The Tribunal upheld the complaint, finding that the employer had approached the situation with a pre-determined view that the employee’s decision to transition did not suit the business. While the actions of neither party could be termed ‘conscientious’ that of the employer might have qualified if it had been grounded on their religious beliefs as was certainly the case for hijab wearing Muslim job applicants rejected specifically for that reason. The conscientiousness of their objections cannot be doubted: “I will keep my hijab, I will keep my identity, and respect my culture and my religion”.142

140

Ibid at para. 157. [2016] NZERA Auckland. 142 See, further, at: https://www.nzherald.co.nz/nz/no-scarf-job-seeker-told-but-jeweller-says-itwas-an-error/NBDG7AR76KP3CHWM4DWE64QDSU/. 141

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The proprietor of a bookshop in the tourist resort of Wanaka seemingly had a strong claim to a defence of conscientious objection when charged with opening for business on Easter Sunday thereby breaching trading legislation requiring shops to be closed on Good Friday, Easter Sunday, Christmas Day and ANZAC Day morning. Although pleading guilty, he argued that the statutory ban constituted an unreasonable limitation on his right of religious freedom under ss.13 and 15 of NZBORA.143 The court sidestepped this issue and, while recording a conviction, relied on the anomalous nature of the law’s zoning parameters to resolve the matter.

9.8.6.2

Religious Owners of Commercial Businesses

An objection may be conscientious, and may be an honest manifestation of personal religious beliefs, but this will not necessarily entitle it to protection in law. For example, the conscientious objection—“I must follow the integrity of my heart and beliefs”—of the owner of Kath's Devine Cakes144 in refusing to make a wedding cake for a same sex couple clearly breached the couples’ human rights as stated in the HRA, s.44: It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public— (a) to refuse or fail on demand to provide any other person with those goods, facilities, or services; or (b) to treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case,— by reason of any of the prohibited grounds of discrimination.

Unlike the Ashers cake debacle,145 this baker was refusing to sell her goods to gay customers because she simply disapproved of them; there was no issue about the goods being especially adapted and used to carry a message that conflicted with her beliefs.

9.9

Conclusion

The concept of ‘insitutionalised conscientious objection’ has a particular relevance in a small jurisdiction where a significant proportion of public health, social care and education services are provided by religious organisations and where many medical practitioners are also religious. For such organisations and practitioners the Abortion

143

Department of Labour v. Books and Toys (Wanaka) Ltd [2005] 7 HRNZ 931. See, further, at: https://www.stuff.co.nz/business/105353363/can-a-businesses-reject-cus tomers-based-on-religious-beliefs. 145 Lee v. and Ashers Baking Co Ltd and others, [2018] UKSC 49. 144

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Legislation Act 2020 is of fundamental importance. Indeed, for New Zealand in general public health is likely to be the single most challenging context for conscientious objection. In addition to abortion, contraception and sterilisation, medically assisted death is also to be a focus for such objections, and similarly so too will any future government constraints imposed in relation to Covid-19. It must be added that the general absence of conscientious objections from Māori in regard to Pākehā treatment of the land and artefacts they regard as sacred, or as representative of their beliefs, is noticeable and may become a fertile source of such objections in the future.

References Ahdar R, John Stenhouse J (eds) (2000) God and government: the New Zealand reality. Otago University Press Clifford L (2016) “ARE YOU MY MOTHER?” A more complicated question than distinguishing birds from barnyard animals: the determination of legal parentage in surrogacy arrangements in New Zealand. University of Otago, at: https://www.otago.ac.nz/law/otago638187.pdf Ekins R, Tomkins D (2013) Constitutional theory for the constitutional review. Maxim Institute, Auckland Human Rights Commission (2010) Tüi Tüi Tuituiä: race relations in New Zealand in 2009. Human Rights Commission, Auckland, p 75 Humpage L (2009) A “culturally unsafe” space? The Somali experience of Christchurch secondary schools. N Z Geogr 65(1):73–82 MacKenzie R (1992) Transsexuals’ legal sexual status and same sex marriage in New Zealand: M v. M. Otago Law Rev 7:556 McLean J et al (2021) Legality in times of emergency: assessing NZ’s response to Covid-19. J Roy Soc N Z 51(sup I):S197–S213

Part IV

Equality, Exemption and Democracy

This Part, in two chapters, draws from the findings in Part III to consider what is revealed by the established facts, trends, anomalies etc, to analyse their significance and to extrapolate from the findings to consider their potential application in a wider field. It reflects on areas of jurisdictional commonality and difference. In the light of the findings it re-assesses the conscientious objection principle: its role, weighting and viability; it considers its potential to contribute to a pluralistic, diverse and stable civil society; and weighs the risk of the principle having the contrary effect of licensing evermore “islands of exclusivity”, thereby fragmenting social coherence. In so doing it examines the public/private balance of interests: the extent to which the present functions of the principle contribute to or detract from the public benefit. It assesses the importance of cultural context.

Chapter 10

Themes of Jurisdictional Commonality and Difference

Abstract This chapter trawls through Part III material to identify and track patterns/ trends of jurisdictional commonality and difference. It follows the structure of the jurisdiction specific chapters, dealing sequentially with: principles, policy and legal framework; the interface between conscientious objection and the fundamental human rights of religion, association and expression; followed by conscientious objection in the context of public health; then in relation to social care services, national defence, public education, employment and commercial services. It identifies and examines such principles and emerging trends as are evident in national jurisprudence, distinguishing the jurisdiction specific characteristics from those which have, or would seem to be acquiring, a wider international validity.

10.1

Introduction

This chapter trawls through Part III material to identify and track patterns/trends of jurisdictional commonality and difference. It follows the structure of the jurisdiction specific chapters, dealing sequentially with: principles, policy and legal framework; the interface between conscientious objection and the fundamental human rights of religion, association and expression; followed by conscientious objection in the context of public health; then in relation to social care services, national defence, public education, employment and commercial services. It identifies and examines such principles and emerging trends as are evident in national jurisprudence, distinguishing the jurisdiction specific characteristics from those which have, or would seem to be acquiring, a wider international validity.

10.2

Principles, Policy, & Legislation

Conscientious objection functions as an indicator of the balance struck between the sacred and the secular, the representative institutions of which—in democratic societies—are in constant tension, adjusting their respective roles in response to © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_10

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the challenges of changing social values and mores. Curiously, as those societies become oriented more towards the secular than the sacred, it would seem that conscientious objection ‘occasions’ are increasing, perhaps as a safety valve, allowing for “more play in the joints”1 by providing opt-outs as a liberal alternative to what otherwise might be a confrontation on matters of morality that could disrupt the established workable tensions in the Church/State relationship.

10.2.1 Principles Conscientious objection, as a legal construct, is dependent upon the objector having a definable religion or similar belief which grounds their conscience and which would be demonstrably violated by undertaking certain actions aligned with those beliefs. In practice, some key principles govern the application of this construct and it is how these are interpreted in each jurisdiction that determines the areas of jurisdictional commonality and difference.

10.2.1.1

‘Religion’ and Contemporary Forms of ‘Belief’

England, for centuries the leading common law nation, having transferred and firmly established Christianity together with its accompanying culture on all Part III jurisdictions, has in recent years been leading their withdrawal into a more secular world, one which accommodates a wide spectrum of ‘beliefs’.

Traditional Religions The growth of multiculturalism, a characteristic feature of the developed western nations, has contributed to the dilution of the dominance formerly enjoyed by their traditional religions and culture. This in turn has increased the level of conflict between those who conscientiously defend or challenge the influence still exercised by the latter: a fact particularly apparent in the U.S. as illustrated by the proportion of relevant cases in which one of the parties is clearly representative of that tradition; much more so than in any of the other Part III jurisdictions. Ireland remains somewhat of an exception to this rule as its statutory and constitutional law retains the traditional requirement for a theistic belief and for doctrinal evidence to be adduced in order to substantiate an organisation’s claim to be recognised in law as a religion.2 There is no equivalent to the range of non-theistic beliefs legally

1

Locke v. Davey, 540 U.S. 712. The fact that a degree of primacy is constitutionally granted to Catholicism was broadly acknowledged by O’Higgins C.J in Norris v. AG [1984] I.R. 36.

2

10.2

Principles, Policy, & Legislation

485

recognised in the adjoining island as having a locus standi equivalent to religion.3 In all other Part III jurisdictions—and quite possibly also in Ireland, even if this remains to be tested—the courts have long since accepted cetain beliefs as having parity of status with traditional religions.

Contemporary Belief Systems and Matters of Conscience The exponential increase in matters that can be legally construed as constituting a ‘religion’ or ‘belief’ has largely proceeded in compliance with a threshold test: can newly emerging beliefs or matters of conscience be legally interpreted as equivalent to an established religion? It was initially formulated by the USSC in Fellowship of Humanity v. County of Alameda4 (see, further, at Sect. 6.2.1.3) and by the ECtHR in Campbell and Cosans v. United Kingdom5 (see, further, at Sect. 3.4.2), as subsequently codified by Burton J in the UK case of Grainger v. Nicholson6 (see, further, at Sect. 4.2.1.2). Essentially the test rests on criteria of cogency, seriousness, cohesion and on the sincerity of the holder of the beliefs. Arguably, however, the elasticity with which the test has been variously applied in the Part III jurisdictions has enabled such a disparate range of beliefs to aquire equal legal status as to cast doubt on whether the constituent parts of the resulting body of legally recocognised religion/beliefs/conscience can now be seen as equally satisfying that set of threshold criteria and as sharing the same intrinsic transcedental quality, as have long characterised the traditional religions. The range of such new beliefs include, for example: in England and Wales, anti-fox hunting,7 climate change8 and the higher purpose of public service broadcasting;9 in the U.S., veganism,10 creativism11 and a lesbian group of witches;12 in Canada, vegetarianism,13 the Falun Gong14 and

3

Irish case law, however, does extend the constitutional guarantee of freedom of religion beyond monotheistic Christian religions, and as it is bound by the rulings of the ECtHR, Ireland must accept the belief systems recognised by that court. 4 153 Cal. App. 2d 673 (1957). 5 (1982) Application No 7511/76, 4 EHRR 293, at para. 36. 6 [2010] IRLR 4 (EAT) at para. 24. 7 See, Hashman v. Milton Park (Dorset) Ltd (t/a Orchard Park) ET/3105555/09. 8 Grainger v. Nicholson, [2009] UKEAT 0219 09 0311 (EAT). 9 Maistry v. BBC ET/1313142/10. 10 Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 1:11-CV-00917 (S.D. Ohio 2012). 11 Peterson v. Wilmur Communications, Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002). 12 See, further, at: https://www.them.us/story/terf-church-irs. 13 Maurice v. Canada (Attorney General), [2002] FCT 69. 14 Huang v. 1233065 Ontario, 2011 HRTO 825 (CanLII).

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Wiccas;15 Australia, Scientology,16 and in New Zealand, the Jedi.17 In some jurisdictions—the U.S.,18 England and Wales,19 Canada20—atheism has been added to the list, an addition which by extending equivalent recognition to the antithesis of ‘religion’, as this phenomenon has been known for millennia to an untold number of successive generations, across many continents is, possibly, as profound an oxymoron as could be found in contemporary law.

Legitimacy and Cogency Subject to the above-mentioned threshold test, and its doubtful relevance to Ireland, the courts have been clear that determining the legitimacy of a religion/belief/ conscience is outside their brief:21 it is the veracity of the believer not the belief that is at issue; and that veracity must be assessed in accordance with the believer’s subjective interpretation even if this is at variance with those that are more orthodox. The outcome of this approach in the U.S. is open to question: a white supremacist belief system22 would seem closer to a political or ideological entity than to a religion; while a lesbian witchcraft organisation,23 subscribing to the belief that trans women are not authentically female, would seem even more distant; and neither lay claim to any transcendent dimension. Essentially, there would seem to be jurisdictional acceptance that a right to exemption is to be ascertained, in each case, by objectively assessing: the cogency and importance of a particular belief; the claimant’s subjective interpretation and commitment to it; and by verifying the relationship between that belief and the civic duty. There is less jurisdictional

15

Re O.P.S.E.U. and Forer, (1985), 52 O.R. (2d) 705 (CA). Church of New Faith v. Commissioner of Pay-Roll Tax (1983) 1 VR 97. 17 In the 2018 census, 20,409 people listed their religion as followers of the Jedi. 18 Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir.2005). 19 Sleath v. West Midland Trains Ltd, ET/1310379/ 2020. 20 In R.C. (Next friend of) v. District School Board of Niagara, 013 HRTO 1382. 21 See: in England and Wales, Re Samuel [1942] 1 Ch 1, CA at p. 17, R (Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246; the U.S., Kedroff v. St. Nicholas Cathedral, 344 US 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952), Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 US – (2012), and Burwell v. Hobby Lobby Stores, Inc (2014) 134 SCt 2751, at para.36; in Canada, Syndicat Northcrest v. Amselem, (2004) 2 SCR 551, at para.50; Australia, Church of the New Faith v. Commissioner of Payroll Tax, (1983) 154 CLR 120, at pp. 150–151; and Iliafi v. The Church of Jesus Christ of Latter-Day Saints Australia, [2014] FCAFC 26; and in New Zealand, Watch Tower Bible and Tract Society v. Mount Roskill Borough, [1959] NZLR 1236 at p. 1241, Liberty Trust v. Charities Commission, HC WN CIV 2010-485000831 and Gay and Lesbian Clergy Anti-Discrimination Society Inc v. Bishop of Auckland, [2013] NZHRRT 36. 22 Peterson v. Wilmur Communications, Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002). 23 See, further, at: https://www.forbes.com/sites/peterjreilly/2018/08/03/lesbians-want-a-church-oftheir-own-and-irs-approves/?sh¼200f914c21c2. 16

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congruity on the legal necessity to then make the exercise of that right conditional upon it not, prospectively, having a disproportionate adverse impact on others. The expansion in the range of legally recognised religions and forms of belief, must inevitably be accompanied by a corresponding increase in the range of conscientious objectors and objections. This may lead to a situation where either: it will become imposible to detect any strong unifying threads of morality across all the religions/beliefs/conscience justifying the conscientiousness of an objection; or there will be such a dilution in its relative significance that, although retaining validity it loses relevance, leading to a collapse in the legitimacy of conscientious objection.

Proportionality When circumstances demand State intervention then the ICCPR and the ICESCR, together with rulings of the ECtHR, require the State to show that the measures taken were justified in principle and proportionate: there was no other means of achieving the same end that would have interfered less seriously;24 it was “proportionate to the legitimate aim pursued” and the reasons adduced by the national authorities to justify interference were “relevant and sufficient”; while allowing for a variable margin of appreciation. This approach is not dissimilar to the ‘compelling interest’ test propounded by the USSC in cases such as Wisconsin v. Yoder25 and incorporated into the Religious Freedom Restoration Act 1993 (RFRA). It has been in play in the U.S. since at least Reynolds,26 and has also been evident in all other Part III jurisdictions (see, further, at Sect. 11.5.4.1).

Beliefs of Indigenous People These beliefs are now often a blend of authentic cultural characteristics passed down through the generations, and the laws, values and religion assimilated from mainstream society. Traditional beliefs, customs and ritual ceremonies vary from tribe to tribe, between bands and in the extent to which they succeeded in avoiding government prohibition and being subverted by Christianity. Their places and subjects of worship are invariably intimately linked to topographical features on their tribal lands. The growing political salience achieved by Indigenous people in the CANZUS nations, in conjunction with the permeation of equality and non-discrimination provisions, reinforced by international law,27 have served to gradually bring some issues concerning their cultural heritage—particularly the violation of places of

Leyla Şahin v. Turkey, Application No. 44774/98, (2005). [I972] 1406 U.S. 205. 26 Reynolds v. United States, 98 U.S. 145, (1879). 27 Particularly the United Nations Declaration on the Rights of Indigenous Peoples 2007. 24 25

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ancestral worship and the entitlement of such places to protection under international freedom of religion provisions—before the courts.

10.2.1.2

State Neutrality

“The strictest separation between State and religion must be observed.”28 Arguably, politicians in the Part III jurisdictions are now—to a varying degree—in the process of resiling from this injunction. Nonetheless, the principle that the State should remain neutral in terms of its relationship with all religious and non-religious entities29 is pivotal to determining what objections can be defined as conscientious. As the principle prevents the State from capping the number, type or replication of beliefs so its capacity to accommodate a fluid range of conscientious objections is theoretically limitless. While the courts in the democratic societies presently being considered have at various times made statements upholding the neutrality principle such statements are open to challenge, more so in some jurisdictions than in others. This has important implications for conscientious objection because all are laden with centuries of adherence to Christianity and with a weight of Christian cultural heritage which tends to determine the source and nature of such objections and needs to be counterbalanced if it is not to stifle or be otherwise prejudicial to the interests of non-Christians. There would seem to be a correlation between the continued strength of that religious/cultural heritage and the nature of the conscientious objections generated by resistance to it, a dichotomy illustrated by the ‘culture wars’ in the U.S. and by the number and type of constitutional amendments undertaken over recent years in Ireland. It may also help to explain the low transference of conscientious objection to the marginalised indigenous communities of the CANZUS nations.

28 See, CoE, Committee on Culture and Education, ‘Religion and Democracy’ report (1998), at para. 14 II. See, further, at: https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp? FileID¼8426&lang¼en. 29 See: England and Wales, Nelan v. Downes, (1917) 23 CLR 546, Re Pinion (deceased), [1965] Ch 85 and McFarlane v. Relate Avon Ltd, [2010] IRLR 872; Ireland, McGrath and Ó Ruairc v. Trustees of Maynooth College, [1979] ILRM 166 and Corway v. Independent Newspapers (Ireland) Ltd [1999] 4 IR 484; the U.S., Everson v. Board of Education, 330 U.S. 1 (1947), Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994) and Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. (2017); Canada, Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, Trinity Western University v. Nova Scotia Barristers’ Society [2015] NSSC 25 and Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3; Australia, Canterbury Municipal Council v. Moslem Alawy Society Ltd, (1985) 1 NSWLR 525; and New Zealand, Carrigan v. Redwood, [1910] 30 NZLR 244, Doyle v. Whitehead, [1917] NZLR 308 and Mabon v. Conference of the Church of New Zealand, [1998] 3 NZLR 513.

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In England and Wales the relationship of the State to the Church is closer to one of partnership than neutrality, a partnership constitutionally secured, though the judiciary have been at pains to stress that it will uphold the neutrality principle. This is not dissimilar to the Church/State relationship in both Ireland and Australia, though there are differences in nature and degree, and a similar partnership relationship is evident in New Zealand even if constrained by the Treaty of Waitangi. In Canada, the denominational divisions structured by the Constitution Act 1867, s.93, license a corresponding State differential with regard to its treatment of religion, particularly in the context of education. Of all the Part III jurisdictions, however, it is in the U.S. where the Church/State relationship seems distinctively different and where conscientious objections are more numerous, varied and carry more significant political implications. State support for traditional Christian organisations, beliefs and values—legitimating for its adherents a widening scope of exemptions from equality and non-discrimination legislation—has now become unmistakeable, and much more pronounced than elsewhere. This is so despite the notional Church/State ‘wall’ with its foundations resting on the anti-Establishment clause as confirmed by decisions of the USSC in a wide range of cases.30 Recent legal developments31 indicate a trend that can only greatly worsen the already bitter culture war divisions.

10.2.1.3

The Religious Exemption

Exemptions and exceptions from universally applicable non-discrimination duties, provided for religious organisations under equality legislation, are a continuing source of conscientious objection both from those defending and those objecting to such preferential treatment. All Part III jurisdictions have such statutory exemptions32 enabling religious organisations and their emanations—including hospitals, schools, homes for the aged etc—to be discriminatory in matters such as their arrangements for staffing, service provision and access. The exemption is generally subject to two conditions: that when making decisions relating to the hiring and firing of staff there must be a functional relationship between the duties of the post

30 See, for example: Church of the Holy Trinity v. United States (1892) 143 U.S. 457, Everson v. Board of Education 330 U.S. 1 (1947), Zorach v. Clauson, 343 US 306 (1952) and Spencer v. World Vision, Inc., 619 F.3d 1109 (9th Cir. 2010). 31 Bill SB 8 in Texas, June Medical Services, LLC v. Russo, 591 U.S. _(2020) and Sharonell Fulton et al. v. City of Philadelphia, 593_U.S. (2021). 32 See: England and Wales, the Equality Act 2010, Scheds. 9 and 23; Ireland, the Equal Status Acts 2000-2018, s.7, and the Employment Equality Acts 1998-2015, s.37; the U.S., under the Free Exercise Clause, the Ministerial Exception and the Religious Freedom Restoration Act 1993 (RFRA); Canada, the Civil Marriage Act 2005, ss.2 and 3, and the Income Tax Act 1985, s.149.1; Australia, the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth); and New Zealand, the New Zealand Bill of Rights Act 1990 (NZBORA) and the Human Rights Act 1993, s.39.

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and the beliefs of the organisation; and that if acting as a government contracted service provider then the organisation is not exempt but is bound by the equality and non-discrimination provisions in the same way as a public body. While such ‘institutionalised conscientious objections’ provoke a good deal of protest from those who are disadvantaged by the effect of the exemptions—including rival commercial service providers who are effectively undercut by tax exempt religious competitors—this has become greatly exacerbated in the U.S. where recent legal developments have strengthened and broadened the scope of the exemption. In the U.S. the exemption privilege has been extended to include wholly commercial retail outlets owned by “closely held” religious persons. Following the Hobby Lobby ruling33 such entities can now discriminate on the grounds of religion or belief or sexual orientation in the way they operate. Moreover, following legislative initiatives launched by the Trump Administration, it is clear that the effect of many state ‘religious liberty laws’ and accompanying policies will be to restore the exemption privilege for those religious bodies acting as government service providers—such as the adoption/foster care services provided by the Catholic Charities agency—and to pressurise other organisations providing services judged to be non-compliant with religious beliefs to close. As state laws change, religious organisations and individuals previously prohibited from discriminating in the provision of goods and services on the grounds of sexual orientation, where such provision is undertaken on behalf of a public body, are increasingly being exempted.

10.2.2 Policy In all Part III jurisdictions, current policy in relation to the nature, scope and application of exemptions from established and legally enforceable civic duties on grounds of conscientious objection is rooted in the same origins—the swearing of oaths, military service and vaccination—from these early paradigms of citizenship it has evolved to address much the same pattern of contemporary morality based issues.

10.2.2.1

Origins: Initial Exemptions

The few early cases relating to the origins of conscientious objection had a formative influence on the subsequent development of the law, though less so in Canada. These cases established that a civic duty, from which an exemption is claimed, must be specific, clearly defined, stated in law and have a moral component that aligns with the beliefs or ‘conscience’ of the particular claimant and is the reason for their objection. Other motives for objecting may also be present—as in the case of

33

Burwell v. Hobby Lobby, 573 US 134 S.Ct. 2751 (2014).

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Principles, Policy, & Legislation

491

whistleblowers and victims of discrimination—but the ‘conscience’ of the complainant must plainly be the driving force. By the beginning of the twentieth century, the principle that conscientious objection could ground the exemption of an individual from the above civic duties, binding on his or her fellow citizens, had become settled law in all jurisdictions. Legal Recognition of ‘Conscience’ Significantly, at an early stage, the right to conscientiously object was based not on simple membership of a specific religion or, more broadly, on being committed to a particular set of religious beliefs, instead it was made firmly dependent on “conscience”. The process of disentangling conscience from religion proved more problematic in some jurisdictions than others but was facilitated in Ireland and Canada by constitutional provisions that recognised their separateness. Differentiating the two enabled ‘conscience’ to be associated with ‘belief’, thereby allowing interpretations that were free from the definitional boundaries associated with ‘religion’. Initially a reference to a conscientious objector implied a reference to the conscience of the individual objector but over time the law extended recognition to corporate entities including, in particular, the ‘insitutionalised conscientious objection’ of religious organisations.

An Aspect of Citizenship The swearing of oaths, serving in the armed forces and compliance with mandatory public health vaccination programmes were government designated civic duties, universally applied legal requirements imposed upon individuals for the public benefit, exemption from which on grounds of conscientious objection required evidence of countervailing personal convictions of sufficient weight to be publicly justifiable. They also served as indices of the State’s reciprocal duty—to protect its citizens and reinforce their allegiance—justifying non-consensual intervention at times when the nation’s health and/or safety was judged to be at particular risk. As time passed, and these reciprocal duties became more nuanced and complicated, so also did the associated grounds for conscientious objection. One such area of complexity arises from the shift in the underlying established morality based in the shared Christian beliefs of all or most citizens to encompass a dessicated range of morality represented by a spread of minority beliefs—including those associated with the Jedi, Wiccans, lesbian witches, vegetarians, etc—not shared nor necessarily respected by fellow citizens nor, in many cases, having any bearing on citizenship. While the State/citizen relationship could respect and accommodate exemptions from civic duties based on a shared platform of beliefs—the link between belief and exempted duty being readily understood—difficulties arose in extending that rationale to accommodate exemptions derived from the new and very varied forms of belief. What right to exemption from what aspect of civic duties

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logically flows from the innate beliefs of each minority group? How can a coherent moral basis be construed that will allow the law to be applied to grant equality of exemption for all who claim that a civic duty contravenes their particular beliefs? Another area that has troubled all Part III jurisdictions concerns the proximity of the objector to the matter at issue: was the exemption privilege confined to those with “hands on” responsibilities or did it extend to include the entire command chain; could anyone who considered themselves as complicit in a process, designed to produce an outcome to which they conscientiously objected, claim exemption? Indeed, this evolved in some jurisdictions to become for many a significant principle in its own right: no contribution at any point in a continuum that gave effect to an unconscionable matter could be contemplated; perhaps mostly so in relation to waging war and ensuring access to reproductive rights. Another area that has grown in significance throughout the pandemic is the issue of government mandated covid vaccination. In the face of climbing rates of infection in the population, leading to increased rates hospitallisation among those unvaccinated, with adverse knock-on effects for those with non-covid related illnesses and for healthcare systems generally, governments in all jurisdictions began taking incremental steps towards legally requiring citizens to comply with mandatory vaccination programmes: first in relation to government employees; then healthcare workers; then other groups designated as posing a risk to the public. Such initiatives were matched by a corresponding increase in dissent and objections, at times conscientious (see, further, Conclusion).

10.2.2.2

Evolving Contemporary Policy

Again, contemporary policy relating to conscientious objection evolved through much the same sequence of social challenges—abortion, same sex marriage and medically assisted death—in all Part III jurisdictions and were naturally the focus of conscientious objections from religious organisations and their adherents who construed the proposed changes as gross violations of those beliefs.

Abortion In England, Ireland, Australia, New Zealand, and other common law nations, the prohibition on abortion was a consequence of the Offences Against the Person Act 1861.34 The process of overturning that prohibition, and establishing recognition and

34 Entitled ‘An Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person’ it was subsequently adopted in other parts of the British Empire. See, further, at: https://centreforfeministforeignpolicy.org/journal/2020/3/9/the-globalisation-of-puni tive-abortion-laws-the-colonial-legacy-of-the-offences-against-the-person-act-1861-ygeff.

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protection in law for reproductive rights, was prolonged and piecemeal.35 A century after its prohibition the prospect of legalising abortion generated heated controversy with particularly strong opposition in the form of ‘institutionalised conscientious objection’ from religious adherents and entities, primarily the Catholic Church, in all jurisdictions. The compromises then built into the regulatory provisions, governing what by the latter decades of the twentieth century (excepting Ireland, South Australia and New Zealand) had generally become a public service, established the legal parameters of conscientious objection in these jurisdictions for many decades (see, further, below at Sect. 10.4.1.1).

Same Sex Marriage The decriminalisation of consensual private sexual relations between those of the same sex occurred, like abortion, in all Part III jurisdictions largely during the same decades of the late twentieth century.36 The legalisation of same sex marriages took a while longer.37 Throughout that process, in those jurisdictions, the movement for equality in same sex and heterosexual relationships was led by social activists and resisted by conscientious objectors; the latter protesting against any change to the prevailing laws and social norms. In the U.S., such objections were encapsulated in the judicial proclamation that “marriage (heterosexual) is one of the ‘basic civil rights of man’ fundamental to our very existence and survival”.38 Ultimately, it was key judicial rulings of the ECtHR and the USSC, echoed in other national courts, emphasising rights of personal privacy, that ensured the enacting of same sex marriage laws.

Medically Assisted Death Belief in the preservation of human life, a well-established religious tenet, was a rallying point for all who opposed medically assisted death. Catholicism in particular, with its innate respect for the inviolability of life—whether that of the unborn,

35

See: in England and Wales, the Abortion Act 1967; in Ireland, the Health (Regulation of the Termination of Pregnancy) Act 2018; the U.S., Roe v. Wade, 410 U.S. 113 (1973); Canada, R v. Morgentaler, [1988] 1 SCR 30; Australia, variously from 1998 (Western Australia) to 2021 (South Australia); and in New Zealand, the Abortion Legislation Act 2020. 36 See: England and Wales, the Sexual Offences Act 1967; Ireland, the Criminal Law (Sexual Offences) Act 1993; the U.S., variously since 1962; Canada, Bill C-150 1967; Australia, variously between 1975 and 1997; and in New Zealand the New Zealand Homosexual Law Reform Act 1986. 37 See: England and Wales, the Marriage (Same Sex Couples) Act 2013; Ireland, the Marriage Act 2015; the U.S., variously from Obergefell v. Hodges, 576 U.S. (2015); Canada, the Civil Marriage Act 2005; Australia, the Marriage Amendment (Definition and Religious Freedoms) Act 2017; and in New Zealand, the Marriage (Definition of Marriage) Amendment Bill 2013. 38 Loving v. Virginia, 388 U.S. 12 (1967).

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the handicapped or the terminally ill—severely constrained any licensing of medical intervention intended to terminate it.

10.2.3 Legislation In all Part III jurisdictions the right of conscientious objection is firmly embedded in constitutional and/or statute provisions as reinforced by international law.

10.2.3.1

International Law

The core international instruments with a bearing on conscientious objection have mostly been signed and ratified by the Part III jurisdictions:39 the Universal Declaration of Human Rights (UDHR);40 the European Convention on Human Rights (ECHR);41 the International Covenant on Civil and Political Rights (ICCPR);42 the International Covenant on Economic, Social and Cultural Rights (ICESCR);43 the International Convention on the Elimination of Race Discrimination (ICERD);44 the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW);45 and the Convention on the Rights of Persons with Disabilities (CRPD).46 Not all jurisdictions, however, have incorporated these intruments into domestic law: Ireland, for example, has not done so in relation to the ICCPR, ICESR, and other UN treaties. For the CANZUS nations the Declaration on the Rights of Indigenous Peoples (UNDRIP) is of particular relevance due to provisions which require State recognition and protection for the culture/beliefs of their indigenous populations: Australia ratified it in 2009; New Zealand did so in 2010; the U.S. agreed to support it in 2016; and Canada finally incorporated it into domestic law in 2021. The delayed CANZUS ratification of UNDRIP was viewed by many,

39

See, Moon (2003), pp. 283–307. Ratified by: England and Wales in 1951; Ireland, in 2000; the U.S., in 1948; Canada, 1945; Australia has not yet ratified; New Zealand, 1978. 41 Ratified by: England and Wales in 1951; Ireland, 1992. 42 Ratified by: England and Wales in 1976 (excluding Optional Protocol 1); Ireland, 1989; U.S., 1992; Canada, 1976; Australia, 1980; New Zealand, 1978. 43 Ratified by: England and Wales in 1976; Ireland has not yet ratified; the U.S. has not yet ratified; Canada, 1976; Australia, 1980, but has not incorporated it into domestic law; New Zealand, 1978. 44 Ratified by: England and Wales in 1969; Ireland, 2000, the U.S., 1994; Canada, 1970; Australia, 1975; and New Zealand, 1972. 45 Ratified by: England and Wales in 1986 (including its Optional Protocol); Ireland, 1985; the U.S., has not yet ratified; Canada, 1981; Australia, 1983; and New Zealand, 1985. 46 Ratified by: England and Wales in 2009; Ireland, 2018; the U.S., 2009; Canada, 2009; Australia, 2008; and New Zealand, 2008. 40

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495

certainly by the indigenous communities of those nations—among the wealthiest in the western world—as unconscienable.

10.2.3.2

Domestic Law

Conscientious objection is now an established component of human rights law in all Part III jurisdictions; due in part to their having become signatory States to the above international instruments, even if not always having taken the further step of encoding them in statutes. It is also represented in the form of ‘conscience clauses’ in certain specific legislation, in particular those dealing with abortion,47 IVF,48 same sex marriages49 and medically assisted death.50 There are significant jurisdictional differences in the law governing the obligation resting on a conscientious objecting service provider to make alternative arrangements for a user to access the service required.

10.3

Conscientious Objection & Fundamental Human Rights

The freedoms of expression, association/assembly and religion each provide fertile ground for conscientious objections though probably none more so than at the intersect of the freedoms of expression and religion. They are protected by many international instruments, most notably the UDHR, to which all Part III jurisdictions are signatory States (see, further, at Sect. 3.2.1).

47

See: England and Wales, the Abortion Act 1967, s.4(1); Ireland, The Health (Regulation of Termination of Pregnancy) Act 2018, s.22; the U.S., the Health Programs Extension Act 1973, s. 300a-7(b) and Protecting Statutory Rights in Health Care 2019; Canada, the Charter, ss.2 and 15; Australia, e.g. the Abortion Law Reform Act 2008, s.8; and New Zealand, the Abortion Legislation Act 2020, s.19. 48 See: England and Wales, the Human Fertilisation and Embryology Act 1990, s.38(1); no other jurisdictions appear to have explicit conscience clauses. 49 See: England and Wales, the Marriage (Same Sex Couples) Act 2013, s.2; Ireland, the Marriage Act 2015, s.7; the U.S., the Establishment Clause; Canada, the Charter, s.2, and the Civil Marriage Act, s.3; Australia, the Marriage Amendment (Definition and Religious Freedoms) Act 2017, s.47B; and New Zealand, the Marriage (Definition of Marriage) Amendment Act 2013, s.6 and the Marriage Act 1955, s.29(2). 50 See: Ireland, Dying with Dignity Bill 2020, s.13; Australia, e.g. Voluntary Assisted Dying Act 2017 (Vic), s.7; and New Zealand, End of Life Choice Act 2019, s.8(1).

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10.3.1 Freedom of Expression Freedom of expression—or free speech—is crucial to citizens’ relationships with each other and with government. It underpins rights of assembly and association, provides a foundation for all forms of political activity and for articulating dissent. Upheld in all Part III jurisdictions, it is a fundamentally important benchmark for democracy with application to a wide range of media, including all forms of artistic expression, to religious organistions and secular corporations as well as to individuals. It is also prone to becoming entangled with other rights, is particularly susceptible to conflict with the right to religious freedom, in which context it has recently generated considerable controversy in relation to matters such as amorphous beliefs, use of satire and also as regards religious clothing, notably illustrated by the current contention relating to Québec’s Bill 21 (see, further, at Sect. 7.7.3.1). Most obviously it has been the exponential increase in recent years of access to social media platforms, leading to ubiquitous real time globalised communication on trending social issues, that has raised the salience of this freedom. A clutch of powerful social media platforms would now seem positioned to determine what shall and shall not be defined as ‘free speech’ and who is to be permitted to express it. This must impact upon what may be held to constitute a conscientious objection and on whether or not it will find expression through social media. Arguably, the volume, speed and range of media available for communication has now outpaced the capacity of the law to ensure its use is compliant with the values of a democratic society. In the U.S.—and to a lesser extent in England, Australia and New Zealand—the law provides a high threshold of tolerance for insulting or provocative speech: there is no right not to be offended. Dissent is legally permissible until there is evidence of wilful intent to incite hatred and/or violence: pluralism in a democratic society must accommodate verbal confrontation; even if this is shocking and highly offensive. In Ireland, a pervasive religious ethos keeps tolerance levels lower. In all Part III jurisdictions, however, statute law lays down parameters of ‘hate speech’, discrimination and harrassment as boundary markers for what is legally acceptable free speech. These boundaries correlate with those for conscientious objection which must remain within the limits set for the freedom of expression. In practice, there would generally seem to be a stoical accepting attitude towards the steadily rising threshold of permissiveness for levels of harassment, ridicule and vitriol that, arguably, by fudging the line between offensive and abusive behaviour, legitimises a broadening range of dissent, undermines the currency of conscientious objection and may not be conducive to promoting democracy.

10.3.1.1

Identity

Identity politics, a well established and much studied phenomenon in all Part III jurisdictions throughout the latter part of the twentieth century, became more

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497

complicated in the U.S. as the culture wars developed and were further exacerbated by the sharpening social divisions of the Trump era. While also very evident in the class consciousness that has always been a feature of society in England and Wales, identity politics rose to prominence as a consequence of the BREXIT trauma. In all six jurisdictions, as elsewhere, the impact of the ongoing ‘migrant crisis’, the spread of populism and the growing strength of the ‘hard right’ movement in its many forms, have all contributed to a heightened awareness of difference and to a resigned acceptance that this will be accompanied by a corresponding increase in levels of dissent. Legal recognition of identity is of importance in itself but also because it functions as a gateway to the enjoyment of other rights including privacy, freedom of expression, freedom from arbitrary arrest, and rights related to employment, education, health, security, access to justice, and the ability to move freely. A conflict between the rights to freedom of expression, religion or equality can challenge the ability of those in minority groups to attain or sustain authentic identities. Expressing identity is not always a defiant assertion of difference. It more often takes the form of wearing indicative clothing, or displaying other badges of belonging to a particular group. Nor is it something readily amenable to being ‘cancelled’ despite the current aggressive endeavours of ‘identity deniers’. For some, however, identity is experienced at a visceral level in the contemporary context of changing social norms. This has certainly often been the experience of some members of the LGBT community and has long been the case for Indigenous People everywhere. Arguably, the linkage between identity and conscientious objection is, perhaps, particularly evident in relation to these two groups. Moreover, there are many who object to any change in binary gender identity as determined at birth, some of whom are religious and are doing so from sincerely held traditional religious beliefs: their objections are, therefore, conscientious. Indeed, it is hardly coincidental that it was Northern Ireland—the most traditionally religious and denominationally divided jurisdiction in the UK—that produced the Dudgeon51 and Asher52 cases which have become established international landmarks for conscientious objection in an LGBT context. In Canada and Australia those seeking legal verification of their gender identity have long been so entitled, while in Ireland this has been possible since the self-declaration Gender Recognition Certificates was introduced in 2015.53 Their counterparts in the U.S. have, in some states, found it easier to do so since the decision in Zzyym v. Pompeo54 but in most evidence of medical intervention remains necessary, as is the case in New Zealand. Identity is a particularly compromising matter for Indigenous people. Not until the latter half of the twentieth century did those in the Part III jurisdictions gain official recognition as citizens of the countries in which they and their ancestors have

51

Dudgeon v. United Kingdom, Application No. 7525/76, (1981). Lee v. Ashers Baking Company Ltd, [2018] UKSC 49. 53 To be extended by the currently pending Gender Recognition (Amendment) Bill 2017. 54 0:18-cv-01453, (2018). 52

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lived for millennia, by which time the unsolicited intrusion of Christianity, vigorously promoted by missionaries, had distorted the authenticity of their inherited identity. For an Indigenous person, that identity is inseperable from culture which, in turn, is often expressed in topographical terms—represented by certain mountains, rivers, rock formations etc—revered, protected and a focus for intergenerational worship, ritual and ceremony. State intervention, where it impacts upon indigenous beliefs, gives rise to a singular variant of conscientious objection (see, further, below at Sect. 10.3.3.2).

10.3.1.2

Blasphemy and Proselytism

Blasphemy has ceased to be a prosecutable criminal offence in all Part III jurisdictions, although only becoming so in Ireland in 2020. In the U.S., it remains on the statute books of several states but is no longer the basis for proceedings. Proselytising or ‘spreading the word’ is perfectly legal and frequently practised in all those jurisdictions. For many who are religious or are committed to beliefs, it is obligatory, spreading the word is a duty not a discretionary option; for the irreligious the freedom to challenge, protest and ridicule belief is often equally important. However, so long as it is free from government influence, does not violate the rights of others and is directed at those who are in a position to make an informed choice— e.g. not children, prison inmates, or mentally impaired persons—then proselytism is a lawful activity. In this context it may be noted that the conscientious objection of individuals, on SOGI or religion related grounds, will only be lawful if it is in fact rooted in genuine conscientiousness —as opposed to harrassing proselytism—and stops short of causing harm to others.

10.3.1.3

Whistleblowers

Those whose motivation and conduct in making a disclosure on a matter that troubles their conscience, in furtherance of the public interest, can be said to be acting as conscientious objectors and can seek legal protection under the whistleblower legislation that now exists in all Part III jurisdictions. Within its statutory parameters, the law governing whistleblowing provides important recognition and legal cover for this form of conscientious objection. However, there is a fine line in the law between those that articulate such an objection in relation to matters in the public interest and those that are otherwise motivated. In the context of national security, a disclosure purporting to be in the public interest may well be interpreted differently by the government of the day as is most clearly illustrated by the numerous cases vigorously pursued by the government in the U.S. The courts are wholly dependent upon the views of the government as to the degree of risk posed by a particular disclosure and the extent of suppression it needed to apply in order to safeguard national security. They can find their hands tied when whistleblowers seek to defend their disclosures on matters of national security by

10.3

Conscientious Objection & Fundamental Human Rights

499

relying on a right to publicly express such objections. In some cases the security concerns are such that it is impossible for government to reveal the grounds on which it acted to suppress the information a whistleblower has chosen to disclose. In short, in this as in other contexts—such as in the Covid-19 pandemic— individual freedoms and the concomitant right to conscientiously object are in practice subject to national security considerations.

10.3.2 Freedom of Association/Assembly Unquestionably, the lifeblood of a democratic society rests on the accommodation provided by law for the creation and maintenance of associations, each representing the distinctive but human rights compliant interests of its members. In all Part III jurisdictions such protection is in theory assured. However, determining whether the right to associate is being exercised in a manner compliant with the norms required by a democracy has become a great deal more difficult in the age of the internet where virtual associations can readily form and reform to facilitate membership interests in subjects such as pornography, trafficking of children and guns, and the pursuit of far right political agendas. The right to assemble—for purposes that may include expressing dissent and collective conscientious objection—like the right to associate, is clearly only legally justified when exercised for lawful purposes. It has become a common and accepted aspect of urban life. Whenever the focus for civil discontent is grounded on religion/ belief/conscience—anti-abortion, anti-medically assisted death or other such causes—the entitlement of activists under international law55 to assemble and protest is permitted and tolerated in all Part III jurisdictions until their conduct is judged to breach the duty of the State to maintain public order. In none of those jurisdictions is that entitlement asserted and defended so staunchly as in the U.S. under the protection afforded by the First and Fourteenth amendments.

10.3.2.1

Corporate Entities

The legal recognition given to the locus standi of corporate entities to conscientiously object has evolved alongside the right to associate. Most usually such status is accorded to religious organisations and their facilities—hospitals, schools etc— which are considered to be so permeated by a religious ethos that they cannot be expected to function other than in a manner wholly compliant with the beliefs of the governing body. Accordingly, they have been granted similar exemption privileges from equality and non-discrimination legislation in all Part III jurisdictions,

55

See, for example: Universal Declaration of Human Rights, Article 20; European Convention on Human Rights, Article 11; and the International Covenant on Civil and Political Rights, Article 21.

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10 Themes of Jurisdictional Commonality and Difference

including in New Zealand where the concept of ‘insitutionalised conscientious objection’ has taken root. In the U.S. this privilege has been extended—in an initiative not yet followed in other Part III jurisdictions—to include secular commercial companies ‘closely held’ by religious owners56 and government funded religious organisations contracted to deliver public benefit services.57 In all those jurisdictions there have been many conscientious objections by corporate entities in relation to granting membership to those perceived as not sharing its values and beliefs. Typically this has occurred in respect of religious groups resisting applications for membership or services from those with SOGI related issues. The opposite dynamic is also very prevalent in the same jurisdictions—corporate entities being challenged by those objecting to the nature of the services provided or to what the entity represents—where protests, some by conscientious objectors, are directed for example at abortion clinics.

10.3.3 Freedom of Religion The right to freedom of thought, conscience and religion—guaranteed under international law58—is recognised and protected under the constitutional and/or statute law of the Part III jurisdictions, if somewhat weakly in Australia. In all of them, as the prevailing religious/cultural influence is heavily weighted towards Christianity, the corresponding conscientious objections are largely manifested by those of other religions and none.

10.3.3.1

Manifesting Beliefs

There is a wide spectrum of jurisdictional difference in the State approach to the public manifestation of religious belief. This may be a reflection of differing cultural contexts and the relative extent to which each has embraced and embedded multiculturalism. Possibly there is an inverse correlation between overt manifestation and perceived social acceptance: Christian individuals in all Part III jurisdictions, for example, need only a discrete emblem to make the same point as the ‘call to prayer’ or the burqa does for Muslims. In the U.S., following the introduction of the RFRA, the USSC developed an assertive approach towards defending religion specific customs which manifest sincerely held beliefs. Most often in England and Wales, as elsewhere in the Part III jurisdictions, problems tend to arise in relation to a perceived ostentatious display of religious affiliation, usually in the form of Islamic attire. When this occurs there is

56

Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682 (2014). Fulton v. Philadelphia, 593_U.S. (2021). 58 For example: the UDHR, Article 18; the ECHR, Article 9; and the ICCPR, Article 18. 57

10.3

Conscientious Objection & Fundamental Human Rights

501

an onus on the wearer to have a sincere conviction that the particular item is a necessary and appropriate manifestation of their belief. Issues relating to religion specific clothing have generated very few cases in Ireland, Australia or New Zealand but have become highly contentious in Canada where the introduction of Québec’s Bill 21—requiring those delivering public services to do so without wearing any religious symbols—has prepared the ground for a wave of conscientious objections particularly from Muslim women (see, further, at Sect. 7.7.3.1).

10.3.3.2

Indigenous Beliefs

The beliefs of Indigenous people are represented to a large extent in the topographical features of the land they have occupied for millenia. In theory, in all the CANZUS nations, the law recognises an equivalence between Indigenous beliefs and institutional religions but in practice this generally does not extend to the further step in equivalence of granting an exemption from State authorised activty on the basis of a legitimate conscientious objection grounded on established beliefs. The U.S. may be an exception in that the ‘compelling interest’ test requires proof either that the legislation does unduly burden any such practice or that, nonetheless, the government’s interest is sufficiently compelling to justify the restriction imposed. However, in all CANZUS nations, the State/Church policy of using residential schools as a mechanism for suppressing the culture of Indigenous People and expediting their assimilation was traumatic and destructive. As intended, it seriously compromised the autonomy and beliefs of the Indigenous communities and triggered many years of protest and conscientious objection. The latter response is currently evident in reaction to government granted licenses for mining etc, which cause further dislocation to cultural heritage, compounding the violation inflicted by missionaries, and perhaps causing irreparable damage to the sense of identity of local Indigenous communities.

10.3.3.3

Affirmative Action

This functions as a caveat to equality legislation in all Part III jurisdictions. It comes into play to channel the resources necessary to counterbalance the disadvantages suffered by a group identified by one or more of the protected characteristics (e.g. Muslim women), or perceived to be the subject of systemic discrimination. It often correlates with a corresponding protest from others who perceive themselves as being treated relatively unfairly; such protests may be classified as conscientious where they are grounded in religious or equivalent beliefs. There is little evidence from any of the jurisdictions of affirmative action being applied in a strategic and sustained manner that is likely to impact on systemic inequality. More often it has become reduced to facile “levelling up” political promises and to modest or nominal quota adjustments in areas such as racially profiling university admissions and in similar arrangements for disability representation in public agencies.

502

10.4

10 Themes of Jurisdictional Commonality and Difference

Conscientious Objection and Equality

International law—as iterated in instruments such as the UDHR, the ICCPR and the rulings of the ECtHR—and declared in national constitutions, and equality and human rights legislation, provide an overarching legal framework for conscientious objection in the Part III jurisdictions. Needless, to say, equality and discrimination complaints only give rise to conscientious objections in circumstances where there is an additional element of religion/belief/conscience. In those jurisdictions where legislation to raise the profile and extent of exemption privileges linked to religious beliefs has recently been introduced or is currently pending—the U.S.,59 the U.K.60 and Australia61—the scope for conscientious objection is correspondingly increased.

10.4.1 Public Health In all Part III jurisdictions, the legal duty of individual health care practitioners and that of health care facilities to deliver government funded public services, as per contractual obligations, is to a varying extent subject to exemptions excusing them from doing so where this would involve a breach of their religion or beliefs. However, there are often important differences between the requirements of the law and those of the medical profession’s governing body: the narrow, prescriptive provisions of the former can in practice be broadened by the discretion and flexibility offered by the latter. Moreover, the institutionalised conscientious objections of facilities owned by religious organisations, that choose not to be providers of particular services, can constitute a considerable constraint on equality provisions and on the right of access to a full complement of public healthcare services.

10.4.1.1

Abortion, Contraception, IVF and Surrogacy

Procreation, and methods of assisting or preventing it, have been of timeless interest to Church and State, not to mention to conscientious objectors on either side of the pro-life/pro-choice debate.

59 The White House Faith and Opportunity Initiative and the many state based ‘religious liberty’ statutes. 60 The pending Conscientious Objection (Medical Activities) Bill 2017-19. 61 The pending Religious Discrimination Bill 2019.

10.4

Conscientious Objection and Equality

503

Abortion Although the right of medical staff to conscientious object to participating in abortion procedures is now well established in all Part III jurisdictions there is little uniformity as regards the relative proportionate impact of such objections on service availability nor in relation to ancillary issues such as whether the exemption is confined to “hands on” practitioners or extends to also include facilitative personnel and whether an obligation rests on those exmpted to personally refer a patient to someone able and willing to provide the required service. In some jurisdictions, where the laws and institutions continue to represent and defend their Christian cultural legacy, practice would seem to have slipped out of synch with the newly emerging social norms generated by increasing pluralism. In Ireland and some states in the U.S.—Texas for example62—the institutionalised conscientious objection of religious organisations is particularly powerful and consequently the extent of service refusal is proportionately greater. Individuals with conscientious objections can be found protesting outside clinics in all Part III jurisdictions but no other society is as polarised in its pro-life/pro-choice division as in the U.S. where many conscientiously object to abortion and a few are violently opposed to it. By way of contrast, the laws governing abortion in Canada have evolved in the more accommodating context of a ‘Well Woman’ culture. In New Zealand the law has leaned towards restraining the discretion of medical staff to claim exemption from involvement in abortion procedures on the basis of conscientious objection but this approach has become more conciliatory with the introduction of the Abortion Legislation Act 2020. There are jurisdictional differences with regard to whether the right to exemption from participation in an abortion procedure on the grounds of a conscientious objection is restricted to medical practitioners or extends to include others who might facilitate such a procedure. In England and Wales it is clear that, as a matter of statutory interpretation, the term ‘any treatment authorised by this Act’ is a reference to those with “hands on” responsibilities (excluding, for example, secretaries) and similarly in Ireland where the legislation refers to ‘any medical practitioner, nurse or midwife’.

Contraception Jurisdictional differences are again apparent regarding the discretion available to pharmacists who conscientiously object to providing ‘over the counter’ contraceptives, particularly the ‘morning after pill’. In England and Wales pharmacists do not

62

Senate Bill 8, prohibiting abortions after 6 weeks (including in cases of rape and foetal abnormality) became law in Texas, following a USSC decision not to intervene, in summer 2021. Other states—North Dakota, South Dakota, Mississippi, Indiana, Arkansas and Florida—seem poised to introduce similar legislation.

504

10 Themes of Jurisdictional Commonality and Difference

have specific legal authority to refuse, though in Ireland they do and in Canada it remains contentious. In the U.S. the situation is complicated as a consequence of the preventative care provisions in the Affordable Care Act but in general state laws permit pharmacists to refuse to provide contraceptives on grounds of conscientious objection. A feature that has emerged as a singular characteristic of the U.S. approach is the fact that non-public service providers—such as for-profit owner/employers— can conscientiously object, and intervene to block, employee access to contraceptives. In Australia the 2019 Bill will potentially expand the scope for conscientious objections from pharamacists as the Abortion Legislation Act 2020 has done for their counterparts in New Zealand.

IVF and Surrogacy The availability of improved fertility treatment (AID, GIFT etc.), including donor embryo implantation, together with surrogacy arrangements—particularly commercial arrangements contracted overseas—have become an increasingly important aspect of reproductive rights and obviously crucial for those in same sex relationships in England and Wales as in Australia nurses, midwives and nursing associates have the right to refuse to participate in IVF procedures if they have a conscientious objection. The absence of a regulatory framework in Ireland entails a similar absence of relevant legal provisions to govern such objections while in the U.S., and to a lesser extent in Canada, these matters are viewed as belonging more to commerce than to public health so the issue seldom arises.

SOGI Related Health Issues The fundamental problem of the legal requirements necessary to officially confirm a change of gender identity, has been an issue and a focus for conscientious objections from those who believe that gender is determined at birth and remains immutable therafter in all Part III jurisdictions and others. In England and Wales, Australia, New Zealand and in many states in the U.S. a mental health diagnosis remains a prerequisite and medical intervention is mandatory to substantiate a claim of gender identity and acquire a Gender Recognition Certificate. In Canada and Ireland, a selfdeclaration of gender identity is sufficient.

10.4.1.2

Medical Practitioners and Assisted Death

While attempted suicide is no longer an offence, to assist another to do so is, unless specifically permitted under the terms of recently introduced legislation. Despite strong resistance from conscientious objectors, as of 2021 such legislation has made medically assisted death available: throughout Canada and New Zealand, in 11 states

10.4

Conscientious Objection and Equality

505

in the U.S., some Australian states and territories, and is about to do so in Ireland; but not yet in England and Wales. The legal process of facilitating medically assisted death is not keeping pace with accessibility to this gradually emerging public health service due to many health care providers individually exercising their right to conscientiously object and declining to provide such assistance. This is exacerbated by the “institutionalised conscientious objection” of religious organisations and the many facilities—hospitals, day centres, homes for the elderly, nursing homes etc—through which they provide services compliant with their beliefs.

10.4.1.3

Blood and Organ Donations

Some health care professionals have sought to register conscientious objections to engaging in blood or organ donation/transplant procedures but—unlike abortion and assisted death—the life-saving nature of blood and organ donation/transplant renders objection in this context more difficult to justify. However, it is legally mandated in Canada and informally facilitated in England and Wales.

10.4.1.4

Vaccination

All Part III jurisdictions share a history of public health mass vaccination programmes offering school age children protection against diseases such as smallpox, mumps, measles, polio and rubella; in some jurisdictions, certification of vaccination is mandatory for school enrollment.

Law, Government and Vaccination in the Covid-19 Pandemic In the ongoing global pandemic, the issue of the private right of individuals to conscientiously object to receiving vaccinations, or not to comply with other covid containment measures mandated by government as necessary to preserve public health and safety, is a matter of critical importance. The public response to the battery of laws, regulations and guidance has generally been one of compliance but there have been many individual and some collective protests, including conscientious objections on the grounds of what was perceived to be an unwarranted State intrusion into private life (see, further, Conclusion).

10.4.1.5

Refusal and Referral

The consequences that should follow an exercise of conscientious objection, for the objector and for those thereby disadvantaged—particularly in a public health context—have exercised law and policy makers in all Part III jurisdictions.

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10 Themes of Jurisdictional Commonality and Difference

Abortion Whether a legal responsibility rests on a conscientiously objecting medical practitioner to peronally refer a patient requesting an abortion to an alternative and willing service provider—as is the case in England and Wales, Australia but not generally in the U.S.—is a significant area of jurisdictional difference. In Ireland, New Zealand and in Ontario, the obligation is to provide the patient with the information necessary to enable them to transfer to another doctor, but this is not a legal necessity elsewhere in Canada. In practice, it is probable that guidance from the relevant professional medical body has a more determinative influence on the discretion of a conscientiously objecting doctor than strict adherence to often very dated legislation.

Vaccination Refusal There is research evidence to suggest, counter intuitively, that an increase in the salience of a disease threat leads not to improved rates of vaccine take up but to an increase in the number of declared vaccine refusers.63 In the context of the Covid-19 pandemic, this has been problematic in all Part III juisdictions. In most it was the legislation governing the responsibilities of employers for the health and safety of their employees in the workplace that triggered debate regarding whether such responsibilities might include the right and possible duty to require employees to be vaccinated in order to ensure a safe workplace. This was the case in England and Wales, Ireland, the U.S. and Canada. The mandatory vaccination dilemma was particularily acute in the public sector for employers in hospital and other healthcare settings. In England and Wales, by September 2021, the established government policy of consensual vaccination— which had worked with significant success—had begun to change in the face of a growing public health threat from the ‘delta variant’ and government consultations were underway to make Covid-19 vaccinations compulsory for frontline health and social care staff. In Ireland, legislation had been passed requiring the vaccination of staff and customers in the hospitality industry. At much the same time in Canada, mandatory nationwide vaccination was introduced for public employees and service users in all aspects of the travel industry and many private employers were beginning to introduce similar policies. In the U.S., where total Covid-19 deaths then stood at approximately 630,000, vaccination refusal had become a contentious legal and moral issue. On the one hand, governments at state and city level were variously resorting to incentive schemes and to denial of access to public venues as strategies for encouraging vaccination. On the other, legislators in a number of states were drafting bills to prohibit vaccine mandates in an attempt to give vaccine refusal the same status and legal protection awarded to gender and racial equality. By late 2021, the Biden Administration had announced a policy of mandatory vaccination for all

63

See, Fridman et al. (2021).

10.4

Conscientious Objection and Equality

507

federal government employees and for all employers with more than 100 staff as a condition for continued employment; many private commercial organisations, such as United Airlines, had also launched such policies. It was in the antipodes, though, that government took an early, firmer and more coherent political approach which seemed based on an interpretation of the Covid-19 pandemic as a threat to national safety. In Australia, there was a concerted pre-pandemic legislative effort to remove the parental right to refuse child vaccination through reliance on conscientiously objection, though by October 2021 there were no mandatory vaccination requirements and, interestingly, there had been no attempt to activate the powers available in the Biosecurity Act 2015. In New Zealand, the government introduced mandatory vaccination for public sector staff—but only those with responsibilities for border security—reflecting a concern to detect, or prevent entry, of those with Covid-19 symptoms. It was this jurisdiction, also, which saw the only significant clash between a conscientious objector and the government on the human rights implications arising from the latter’s covid response constraints imposed on its citizens. Borrowdale64 stands as a warning to governments in all democratic societies that they must tread warily at such times if thay are to accommodate dissent while remaining within human rights parameters (see, further, at Sect. 9.8.1.4).

10.4.2 Social Care Services Social care provision for persons such as those suffering from a mental or physical disability, the very young and the elderly, is central to the smooth functioning of all modern democratic societies. A high proportion of services and facilities—day care, residential homes for the elderly and community centres etc—are provided and/or staffed by religious organisations, or delivered by public officials with religious beliefs, and access may, therefore, be subject to their conscientious objection.

10.4.2.1

Public Benefit Service Providers

In all Part III jurisdictions, public benefit service delivery is provided by government officials, who often have sincere religious convictions and additionally, if to a varying extent, such services are also contracted out by government to religious organisations. As equality and non-discrimination legislation extended to include same sex issues, such public benefit service delivery agencies and staff were increasingly being penalised for refusing to facilitate the delivery of services when

64 Borrowdale v. Director-General of Health, [2020] NZHC 2090. See, also, GF v. Minister of COVID-19 Response, [2021] NZHC 2526.

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10 Themes of Jurisdictional Commonality and Difference

to do so involved a violation of religious belief. Consequently a level of service disruption ensued. In England and Wales, as in the U.S. and Canada, a denial of services deliverable by religious organisations or by religious individuals—adoption and foster care,65 for example, and the registration of same sex marriages—on the grounds of conscientious objection were initially held to constitute religious discrimination and exemption claims were dismissed by the courts. In Ireland as in Australia,66 religious individuals and organisations are often statutorily exempt from undertaking service delivery responsibilities where this would violate their religious beliefs. However by 2020, in response to a perception that religion and the religious were being disproportionately penalised by the perhaps doctrinaire levelling effects of equality and non-discrimination provisions, there was evidence of a growing willingness among legislatures to provide religious agencies and individuals—faith based adoption agencies, health care professionals, registrars and other public officials—with exemptions. Governments began introducing statutes enabling public benefit service providers to refuse—on grounds of religion/belief/conscience—to engage with matters such as abortion and medically assisted death, with SOGI related issues including same sex foster carers and adopters.67 The U.S. ‘religious liberty laws’ were presaged by the still pending Conscientious Objection (Medical Activities) Bill 2017-19 in England and Wales which aims to more clearly establish rights of conscientious objection in relation to abortion, activities under the Human Fertilisation and Embryology Act 1990 (like embryo research or egg donation) and the withdrawal of life-preserving treatment. Québec’s Bill 21, which took effect in 2019, although not representative of Canadian law and policy more generally, seems to fly in the face of current trends by suppressing manifestation of religious belief, which can often be a form of conscientious objection. In Australia the Religious Discrimination Bill 2019 together with the Bill of Rights Bill 2019, will potentially expand the scope for religiously based conscientious objection. This will also be the effect of the Abortion Legislation Act 2020 in relation to pharamacists in New Zealand.

65

Adoption and foster care: in England and Wales, see R (on the application of Johns) v. Derby City Council, (2011) EWHC 375 (Admin) and Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales [2011] EqLR 597; in the U.S., see Sharonell Fulton et al. v. City of Philadelphia, 320 F. Supp. 3d 661; in Canada, see C.D. and N.D. v. Alberta Child and Family Services, (Q.B. AL, filed 11/1 /2017). Marriage registrars: in England and Wales, see Ladele v. London Borough of Islington, [2009] EWCA (Civ) 1357; in the U.S., see Miller v. Davis, 123 F.Supp. 3d 924 (E.D. Ky. 2015); in Canada, J. (M.) v. Nichols, 2009 SKQB 299. 66 OV and OW OW v. Members of the Board of the Wesley Mission Council [2010] NSWCA 155. 67 Judicially endorsed in the U.S. by Fulton v. Philadelphia, 593_U.S. (2021).

10.4

Conscientious Objection and Equality

509

10.4.3 Public Education Education is a crucial medium for the inter-generational transfer of cultural values but this must be balanced against the opportunity it also provides to promote the cultural inclusivity and diversity that characterises a democratic society. The State has a responsibility to take the necessary steps to ensure that the values and beliefs, distinctive and integral to the identity of minority groups, are given appropriate representation and are safely accommodated within the education system. A particularly heavy onus, therefore, lies on a State with a legacy of many centuries of Christian cultural heritage—such as in all Part III jurisdictions—to ensure proportionate representation in that system for the beliefs of those from non-Christian cultural backgrounds.

10.4.3.1

Home Schooling

Conscientious objection to State educational provision is most acute when parents opt out of that provision on the grounds that it fails to adequately accommodate their particular religion/belief or cultural values. The parental right to then substitute home schooling, subject to content and standards being monitored and supported by the State, is recognised in all Part III jurisdictions and judicial notice has been taken of it in Ireland68 and the U.S.69

10.4.3.2

Schools, Teachers and Parents

The parent/school interface has long been a source of contentious issues; one attracting parental conscientious objection to matters such as selective access, particular curricula content, teaching bias or institutional practices. As regards access, the general rule applicable to the public education system in the Part III jurisdictions is that a school in receipt of State funding is not permitted to discriminate in its admission policy. This rule is substantiated by caselaw in England and Wales,70 and the U.S.71 but not so much in Australia.72 However, the Irish and Canadian public educational systems continue to largely represent the institutionalised and denominational religious ethos that prevailed in the

68

Re Article 26 of the Constitution and the School Attendance Bill 1942, [1943] IR 334 and D.P. P. v. Best, [1999] IESC 90. 69 Wisconsin v. Yoder 406 US 205 (1972). 70 R (E) v. Governing Body of JFS, [2009] UKSC 15. 71 Zelman v. Simmons-Harris, 536 U.S. 639, Trinity Lutheran v. Corner, 582 U.S. (2017) and Espinoza v. Montana, 140 S. Ct. 2246, (2020). 72 Williams v. the Commonwealth of Australia [2012] HCA 23.

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10 Themes of Jurisdictional Commonality and Difference

mid-twentieth century. This has been endorsed by the Canadian judiciary73 and by the Irish courts as regards both primary74 and secondary75 education. Society in the latter jurisdiction has since become greatly diversified and recent legislation indicates a political willingness to moderate this state of affairs.76

Curriculum Content In all Part III jurisdictions, as elsewhere in democratic societies, parental interest in and opposition to curriculum content has grown to become an accepted dimension of public education. Conscientious objections from religious organisations and parents—mainly Christian, Muslim and Orthodox Judaism—have most recently focused on SOGI related teaching material. This has generated considerable contention and caselaw in England and Wales77 and Canada.78 Conscientious objections have also come from secularists objecting to a perceived undue religious influence on curriculum content in England and Wales,79 the U.S.,80 Canada81 and Australia.82

Religion Specific Clothing, Symbols etc The wearing of religion specific clothing, or other similarly indicative accessories, is most often an intended manifestation of personal religious/cultural identity, a conscientious objection to a public environment perceived as anonymous or as ignorant of the respect due to that identity. The right to display religious affiliation in this way is generally accommodated in all Part III jurisdictions. However, there are

73

Adler v. Ontario, [1996] SCR 609. Crowley v. Ireland, [1980] IR 102. 75 Greally v. Minister for Education (No 2), [1999] 1 IR 1 and Campaign to Separate Church and State Ltd, [1998] 3 IR 321. 76 Education (Admission to Schools) Act 2018. 77 Colchester, R. (On the Application Of) v. Secretary of State for Education, [2020] EWHC 3376 (Admin). 78 Chamberlain v. Surrey School Board District 36 (2002), 221 D.L.R. (4th) 156 (SCC), SL v. Commission scolaire des Chênes, [2012] 1 SCR 235 and Loyola High School v. Québec (Attorney General) 2015 SCC 12. 79 R (Fox & Ors) v. Secretary of State for Education, [2015] EWHC 3404 (Admin). 80 Edwards v. Aguillard, 482 US 578, 107 S Ct 2573, 96 L.Ed.2d 510 (1987). 81 Tiny Township Catholic Separate Schools Trustees v. The Queen (1928) A. C. 363; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 SCR 575; Reference Re Bill 30 [1987] 1 SCR 1148; Adler v. Ontario [1996] SCR 609; and Waldman v. Canada, Comm No 694/1996. 82 Attorney-General (vic) (Ex rel Black) v. Commonwealth, (1981) 146 CLR 559 and Williams v. the Commonwealth of Australia [2012] HCA 23. 74

10.4

Conscientious Objection and Equality

511

exceptions: in the U.S. it is impermissible for teachers83 but permissible for pupils;84 in Canada it is mostly unproblematic except for the prohibition on teachers in Québec; in Australia, while uncertain for teachers, it is permissible for pupils.85 When problems do arise there is an onus on the wearer to show a sincere conviction that: the particular item is a necessary and appropriate manifestation of their belief; it does not have a proselytising effect on dependent and susceptible pupils; nor present a health or safety risk; and is necessitated by their sincere if wholly subjective interpretation. Throughout the public education systems of the Part III jurisdictions, the accommodation for prayers, symbols and religious ceremonies etc is invariably interpreted in terms of the Christian religion/culture. Such representation is pervasive in Irish schools and while Christian prayers are routinely incorporated into schools in England and Wales less allowance is made for religious ceremonies and iconography. In the U.S.86 and Canada87 a litany of cases have established that permitting prayers or other religious ceremonies in State schools is impermissible. In Australia, the judiciary have taken the opposite view88 and in New Zealand there is some latitude for incorporating Christian prayers in ostensibly secular State schools. In recent years, as secularism gains in salience and Christianity diminishes in an evermore multicultural social context, there has been an increasing stream of parental conscientious objections from those who believe their children should not be required to participate in, or being unwilling attendants at, religious practices that are alien to their family life.

Indigenous Children and State Education All CANZUS nations share the same shameful historical record of enforcing the assimilation of indigenous children into the State education system, as part of a strategy for breaking links with their culture of origin. This has been termed ‘the educational process of destroying a people’s culture and replacing it with a new culture’.89 It was a State policy that provided the children, their families and tribes with a focus for a collective form of conscientious objection sustained over 83 Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (1986) and United States v. Board of Educ. Sch. Dist. Phil, 911, F.2d 882 (3d Cir. 1990). 84 Hearn and United States v. Muskogee Public School District, 020, No. Civ. 03 598-S (E.D. Ok., 2003). 85 Arora v. Melton Christian College, (2016) H2207 (VCAT). 86 See: Santa Fe Indep. Sch. Dist. v. Doe, 530 US 290 (2000); Lee v. Weisman, 505 US 577 (1992); Wallace v. Jaffree, 472 US 38 (1985); Sch. Dist. v. Schempp, op cit; and Engel v. Vitale, 370 US 421 (1962). 87 Zylberberg v. Sudbury Board of Education (Director), [1988] O.J. No. 1488, 52 D.L.R. (4th) 577 (C.A.) and Russow v. BC (AG), (1989), 35 B.C.L.R. (2d) 29. 88 A obo V and A v. NSW Department of School Education, [2000] NSWADTAP 14. 89 Spring (2001), p. 4.

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10 Themes of Jurisdictional Commonality and Difference

subsequent generations. It is argued that this process continues, that ‘educational outcomes for indigenous students remain in a state of crisis compared to those for most other ethnic groups . . . that the flaws of a neo-colonial model of schooling are the basis of a general alienation from education, shown. . . in their absenteeism, poor literacy and numeracy skills, and high levels of examination failure’.90

10.4.3.3

Faith Schools

Such schools, though formally linked to specific religions, are generally incorporated into the State education system—some are independent entities—and are State funded, at least partially. They are free to teach a general curriculum but this must follow the core elements of the national curriculum, even if taught with a particular religious character. In the case of Ireland, the State education system is in practice almost entirely faith based. Similarly in Australia, faith schools are again not a distinct category outside the public education system but maintain their religious access filters and are exempt from gender identity and sexual orientation provisions. Faith schools are largely exempt from the requirements of equality and non-discrimination legislation. In effect this means they are permitted an extensive range of discriminatory practice, including: preferential treatment in terms of funding to become established; permission to discriminate in pupil admissions and staffing; a teaching curriculum skewed in favour of a denominational religious belief; and a corresponding alignment of taught social values in regard to issues such as gay marriage, abortion etc. Each of these characteristics is or has been the subject of conscientious objections from secularists and from those parents whose children attend faith schools that are denied State funding equivalent to that directed towards the dominant Christian schools.

10.4.3.4

Colleges/Universities

Always an environment for generating challenges and channelling dissent, universities in the democratic societies of the Part III jurisdictions have, in recent years, witnessed a varying degree of turmoil over a nexus of issues arising from the intersection of religion, sexuality and gender. While this has found expression in a great deal of vitriolic campaigning, ‘no-platforming’ and ‘cancel culture’ forms of protest, there has been little that could be construed as conscientious objection.

90

See, Hickling-Hudson and Ahlquist (2003), p. 84.

10.4

Conscientious Objection and Equality

513

LGBT Related Issues The fact that religion plays such a prominent role in the education system—some universities and colleges in the Part III jurisdictions are denominational—ensures a transference of socially divisive LGBT related issues into tertiary level education. Where those issues involve a person or organisation making a principled stand— most often grounded on traditional religious beliefs—then, in the absence of any other obvious motive such as political maneuvering, their objection must be recognised as conscientious. While this is substantiated by caselaw in England and Wales91 and Canada92 it is probable that similar disputes involving matters such religious societies denying membership to same sex couples, trans persons being ‘no-platformed’ by feminists etc most of which are more appropriately classified as political than conscientious.

Affirmative Action While universities, in compliance with ostensible ‘levelling up’ provisions in equality and non-discrimination law, are likely to operate affirmative action policies to favour socially marginalised groups, any objections from those disadvantaged by such a policy are less likely to be conscientious and more likely to be allegations of unfair discrimination. In the U.S., however, the USSC would seem to have made some rulings which, by condemning the disciplinary measures taken by university authorities against evangelical student groups that refused membership to LGBT persons, gave recognition to the right of such groups to exercise their consientious objections in that way.93

10.4.4 Public Defence and Security National security implies that the greater good of protecting society justifies constraints on individuals. The conscientious objection of the latter might therefore be expected to have correspondingly less capacity to prevail against measures taken to protect the public. It is an argument with clear implications for imposing restictions upon civil rights and on the normal functioning of democratic society in the context of the Covid-19 pandemic.

91

R (Ngole) v. University of Sheffield, [2019] EWCA Civ 1127. Trinity Western University v. British Columbia College of Teachers (2001), 39 C.H.R.R. D/357. 2001 SCC 31, Law Society of BC v. Trinity Western University, 2018 SCC 32 and Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. 93 Healy v. James, 408 U.S. 169; Widmar v. Vincent, 454 U.S. 263; and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829. 92

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10 Themes of Jurisdictional Commonality and Difference

Military Issues

The original form of conscientious objection—the right to refuse to ‘bear arms’ or otherwise serve in the armed forces on grounds of religion or another form of belief—continues to find recognition in the exemptions available in the domestic law of all Part III jurisdictions, as reinforced by the provisions of international law. Paradoxically, this issue has now been reframed: the primary thrust of conscientious objections in a military context is now coming not from those wishing to be exempted from being placed in a position where they might be required to inflict harm or death on others but from trans persons insisting on their right to be so placed; a right conceded in all Part III jurisdictions except the U.S.

10.4.4.2

Prisoners and Asylum Seekers

SOGI related social mores, now accepted and legally endorsed as mainstream social values by most citizens in the Part III jurisdictions, are repellant to their counterparts in Muslim countries (as they largely are to Muslims in western countries), and have come to form well established grounds for Muslim asylum seekers with SOGI related issues to resist enforced repatriation to their countries of origin. For such asylum seekers, given the legal recognition they are now accorded as belonging to a special group, the members of which would face persecution in their home countries because they were pereceived as violating religious/cultural values, the claimants’ objections to being returned can be fairly classified as being—at least in part— conscientious. SOGI related issues have also given rise to contention in the context of accommodating prisoners. However, whereas asylum seekers with such issues may justifiably claim that—due to the governing Islamic system of religious beliefs—their objections could be construed as conscientious, prisoners with the same issues cannot as their protests, except obliquely, have little if anything to do with religion or other form of belief. Arguably, however, prisoner protests in the form, for example, of a hunger strike in support of a cause with a recognisable values dimension—rather than for political leverage or for better living conditions— could be interpreted as constituting a conscientious objection. Bearing in mind the latitude now available to define ‘religion’ and ‘belief’, being a committed member of any organization with a cogent and coherent belief system may well legitimate a protest closely related to those beliefs as being one of conscientious objection. In all Part III jurisdictions, the right to conscientiously object when opportunities to manifest personal religion/belief are unavailable—dietary requirements, prayer and worship and contact with clergy—is well established as is the corollary right not to be subjected to proselytism imposed or condoned by prison authorities.

10.4

Conscientious Objection and Equality

515

10.4.5 Employment This vast field of human activity, being based upon negotiable contractual arrangements, is prone to dissent among the parties and between fellow workers in the workplace which, to some degree, vary according to whether that workplace is in the public sector or the private or nonprofit sectors. For that reason, arbitration mechanisms have long ago been put in place for hearing and resolving objections regarding terms of employer/employee engagement and working conditions. Such objections are often simply a rights based response to being treated exploitively, offensively or unlawfully. They can, however, transcend that definition and be justifiably interpreted as conscientious if an additional dimension is also present: where the protester is objecting because he or she perceives their personal beliefs to be intrinsically violated by the nature of the discriminatory act; or, perhaps, when the belief system that triggers the discriminatory act is itself non-compliant with contemporary normative values.94

10.4.5.1

Right of Employers to Hire and Fire

The equality and non-discrimination legislation of all Part III jurisdictions, coupled with international human rights and labour related legal instruments, clearly state that an employer is prohibited from both refusing to hire and from firing any individual on grounds that include the individual’s religion; the latter being generally interpreted as including beliefs and matters of conscience.

Religious Organisations Religious organisations, which invariably also have charitable status, are entitled to tax exemptions, have developed a ‘captive market’ with fellow adherents, and also enjoy privileged exception from the constraints of a range of equality and non-discrimination legislation. In New Zealand—as in Australia, Ireland and the U.S.—the now considerable civic infrastructure of schools, hospitals, social and health care facilities etc, developed by such organisations over the centuries on what is now prime real estate, is almost exclusively Christian and largely tax exempt. All of this gives asset rich religious organisations a competitive edge over their secular counterparts and generates a considerable body of objections; conscientious and otherwise. The concept of ‘institutionalised conscientious objection’ is of central importance in this context: it provides the governing frame of reference for the hiring/firing actions of employing religious organisations; absent any other factors, the roles of 94 The rationale articulated by the six dissenting judges in A, B and C v. Ireland, [2010] ECtHR (GC) (No. 25579/05).

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both employer and employee in such actions are as much defined by conscientious objection as by equality and non-discrimination law. Caselaw indicates that in most Part III jurisdictions the courts will uphold objections rooted in the beliefs/conscience of the objector—grounded also in equality and non-discrimination provisions—subject to evidence that the duties of the post in the employing religious organisation require the employee to comply with the organisation’s beliefs,95 but not if the duties are irrelevant or marginal to those beliefs.96 The Australian regulatory bodies, illustrating a significant area of jurisdictional difference, have taken a different approach and upheld the complaints—arguably, conscientious objections—of staff employed by religious organisations who are found to have been unfairly dismissed for conduct in breach of the organisation’s beliefs.97

Secular Organisations The majority of relevant cases concern the hiring/firing of religious employees in secular organisations for refusing to work on certain days as required by their religion: such refusals, being mandated by religious belief, meet the definition of conscientious objection. In general, these cases were construed as governed by contractual terms of employment and the appeals of complainants duly rejected— but not always98—as they can be held to have voluntarily placed themselves in that position.99

95 See: in Ireland, Flynn v. Power, [1985] IEHC 1, Re Article 26 and the Employment Equality Bill 1996; the U.S, Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 329, 339 (1987), Our Lady of Guadalupe School v. Morrissey-Ber, 1989, WL 53857 (S.D. Miss), and Dodge v. Salvation Army, 1989, WL 53857 (S.D. Miss); Canada, Re Caldwell and Stuart (1985) 15 DLR (4th) 1, Schroen v. Steinbach Bible College, (1999), 35 C.H.R.R. D/1 (Man. Bd. Adj.), Daly v. Ontario (Attorney General, 44 O.R. (3d) 349, [1999] O.J. No. 1383 and Heintz v. Christian Horizons, 2008 HRTO 22, 2010 ONSC 2105 (Div. Ct.). 96 See: in England and Wales, Hender & Sheridan v. Prospects for People with Learning Disabilities, [2008] ET 2902090/2006 & 2901366/ 2008 and Glasgow City Council v. McNab, [2007] IRLR 476; Australia, Ciciulla v. Curwen-Walker, (1998) EOC 92-934 (Vic ADT), Mornington Baptist Church Community Caring Inc, (2006) EOC 93-422 (VCAT) and Walsh v. St Vincent de Paul Society Queensland (No. 2), [2008] QADT 32. 97 Thompson v. Catholic College Wodonga, (1988) EOC 92-217 (Vic ESCAB), Griffin v. Catholic Education Office, (1998) EOC 92-928 (HREOC) and Dixon v. Anti-Discrimination Commissioner of Queensland (2004) EOC 93-327 (SCQ). 98 See: in the U.S., EEOC v. Covergys Corp., (E.D. Mo. 2011); Canada, Qureshi v. G4S Security Services, 2009 HRTO 409 (CanLII), 2009 HRTO 409 (CanLII), Widdis v. Desjardins Group, 2013 HRTO 1367, O’Malley v. Simpson Sears, [1985] 2 SCR 536 and Chambly (Commission scholaire régionale) v. Bergevin, [1994] 2 R.C.S. 525; and New Zealand, Nakarawa v. AFFCO New Zealand Ltd, [2014] NZHRRT 9, Meulenbroek v. Vision Antenna Systems Ltd, [2014] NZHRRT 51. 99 See: in England and Wales, Esson v. London Transport Executive, [1975] IRLR 48, Ahmad v. Inner London Education Authority, [1978] QB 36, CA. Stedman v. UK, (1997) 23 EHRR CD168, James v. MSC Cruises Limited UK, No. 2203173/05, (April 2006) and Patrick v. IH Sterile Services Ltd, ET 3300983/11; the U.S., Sherbert v. Verner, 374 US 398 (1963); Canada.

10.4

Conscientious Objection and Equality

517

SOGI Related Issues Mostly, the hiring/firing decisions relating to such issues are transparently matters of sexual discrimination. However, because of religion’s subliminal capacity, in some instances the conduct of either employer or employee may be a proxy manifestation of religious belief or of other form of belief. Where there is evidence to show that the reaction to a SOGI related issue has in fact been driven by belief—instead of or as well as discrimination—then conscientious objection may well come into play. This seems to have been the case, for example, in Ireland,100 the U.S.101 and Canada.102

10.4.5.2

The Workplace

In the workplace, contractual arrangements will generally take precedence when disagreements arise: employers are entitled to ensure that agreed terms and conditions prevail and that an employee’s need to express their religion/belief/matters of conscience do not infringe the rights of others; but, where practicable they are expected to make reasonable accommodation for such expressions.103 This expectation is subject to any undue hardship anticipated by the employer104 and to the demonstrable sincerity of the employee,105 both being subject to a test of proportionality and to a further consideration: public officials, unlike their counterparts in the private and nonprofit sectors, bear a heavy legal onus to make government

100

A Teacher v. A National School, Equality Tribunal, DEC-E2014-097, (2014). Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. 2017) and Zarda v. Altitude Express, 139 S. Ct. 1599–2019. 102 Heintz v. Christian Horizons, 2008 HRTO 22, 2010 ONSC 2105 (Div. Ct.). 103 See, Canada, O’Malley v. Simpson Sears, [1985] 2 SCR 536, Chambly (Commission scholaire régionale) v. Bergevin, [1994] 2 R.C.S. 525 and HT v. ES Holdings Inc. o/a Country Herbs, 2015 HRTO 1067. 104 See: in England and Wales, Patrick v. IH Sterile Services Ltd, ET 3300983/11, Thompson v. Luke Delaney George Stobbart Ltd, [2011] NIFET 00007 11FET; the U.S., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), Knight v. State of Connecticut, Department of Public Health, and Quental v. State of Connecticut Commission on the Deaf and Hearing Impaired, 275 F.3d 156, 168 (2001); Canada, Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C.), O’Malley v. Simpson Sears, [1985] 2 SCR 536 and Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 CHRR D/417 (SCC); Australia, Ahmad McIntosh v. TAFE Tasmania, [2003] TASADT 14; and New Zealand, Nakarawa v. AFFCO New Zealand Ltd, [2014] NZHRRT 9, Meulenbroek v. Vision Antenna Systems Ltd, [2014] NZHRRT 51. 105 See: in England and Wales, Eweida and Others v. United Kingdom, [2013] ECHR 37; the U.S., Hussein v. Waldorf-Astoria, 134 F. Supp. 2d 591 (S.D.N.Y. 2001). EEOC v. Chemsico, Inc., 216 F. Supp. 2d 940 (E.D. Miss. 2002); Canada, Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder (1985), 7 C.H.R.R. D/3093 (S.C.C.); Australia, Fox v. Canberra Television Pty Ltd, (1999) VCAT, Tribunal No A328 of 1999; and New Zealand, Satnam Singh v. Shane Singh and Scorpion Liquor, [2015] NZHRRT 8. 101

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funded services available to the public, as per their contractual obligations.106 An employer’s failure to make reasonable accommodation, after taking into account those caveats, can result in a religious employee’s conscientious objection as has been the case in England and Wales,107 Ireland,108 the U.S.,109 Canada110 and New Zealand.111 Such caselaw as there is would seem to indicate that Australia is somewhat of an exception.

10.4.6 Commercial Services The tension between the duty of a private provider in retail, hospitality and other commercial sectors to make their services or goods available to the public on a non-discriminatory basis, and the reciprocal right of a prospective customer to access those services or goods on the same basis, is prone to disrupt when one party conscientiously objects to service availability being conditional upon compliance with values that violate their personal beliefs. In the U.S., the potential scope for such disruption in the field of commerce was greatly expanded by the decision in Burwell v. Hobby Lobby Stores Inc112 which extended the religious exemption to secular retail outlets, even if only to those “closely held” by religious owners.

10.4.6.1

Goods and Services

The hospitality sector, where the provision of goods and services tends to be more personal, generates much the same pattern of issues across the Part III jurisdictions. Mostly these are straightforward matters of discrimination. However, where one party is taking up a position grounded on their personal religious or other beliefs then, arguably, they are objecting traditional. This would seem to be the case as regards some issues relating to accommodation,113 catering, florist services114 and 106 See: in England and Wales, McClintock v. Department of Constitutional Affairs, [2008] IRLR 29 and Ladele v. London Borough of Islington, [2009] EWCA (Civ) 1357. 107 Noah v. Sarah Desrosiers (trading as Wedge), ET 2201867/2007. 108 Tavoraite v. Dunnes Stores, Employment Appeals Tribunal, Dublin, November 13, 2012. 109 Sherbert v. Verner, 374 U.S. 398 (1963). 110 Drager v. I.A.M. and A.W., [1993] B.C.C.H.R.D. No. 42. 111 Meulenbroek v. Vision Antenna Systems Ltd, [2014] NZHRRT 51. 112 573 U.S. 682 (2014). 113 See: in England and Wales, Bull v. Hall and Preddy, [2013] UKSC 73 and Black v. Wilkinson [2013] EWCA Civ 820; Canada, Eadie and Thomas v. Riverbend Bed and Breakfast and others (No 2), 2012 BCHRT 247; Australia, Burke v. Tralaggan, [1986] EOC 92-161. 114 See: in England and Wales, Lee v. and Ashers Baking Co Ltd and others, [2018] UKSC 49; the U.S., Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S._(2018) and Klein, dba Sweet Cakes by Melissa, v. Oregon Bureau of Labor and Industries, 289 Or. App. 507 (2017); and

10.5

Conclusion

519

others. Typically, these cases tend to revolve around service providers with traditional religious beliefs—most commonly, marriage as exclusively heterosexual— whose conscientious objections to service requests have generally been held in all Part III jurisdictions to constitute a breach of equality and non-discrimination law. In recent years there has been increasing disquiet regarding what some have viewed as the ideological application of equality legislation which, in particular, has constrained the social role of religious organisations and undermined the importance attached to traitional religious beliefs. The ‘liberty laws’ in the U.S. provided the first intimation that change was underway: that carve outs from the equality imperative would introduce a more nuanced approach to issues lying on the equality/religion intersect. The recent unanimous USSC decision in Fulton v. Philadelphia115 has hardened that approach and established it as a characteristic that distinguishes the U.S. from all other Part III jurisdictions.

10.5

Conclusion

Broadening the definition of ‘religion’ to accommodate a diverse spectrum of ‘beliefs’, a phenomenon common to all Part III jurisdictions—though less so in Ireland—has been gathering pace since the turn of the century. This is important, given that: the broader the spectrum of beliefs, the greater the diversity of matters that may justify a conscientious objection. As all jurisdictions are now experiencing such a broadening, this has led to growing uncertainty regarding the status of Christianity and its centuries of associated cultural heritage relative to more recent and sometimes ephemeral forms of belief. The growth in the volume and diversity of beliefs has inevitably generated tensions between those of different religions/beliefs and those of none, resulting in a corresponding increase in the number and variety of conscientious objections. This process of testing out of what might constitute a religion or belief, and what would therefore constitute a conscientious objection, has yet to be wholly transposed into an indigenous context but this may well happen as equality and non-discrimination principles begin to be applied. The process, however, has proved challenging for adherents of Christianity and defenders of its cultural heritage. Protests from that quarter, focused on a perceived threat to traditional beliefs— heterosexual marriage, immutability of gender and the sanctity of life etc—have recently received government support and in several Part III jurisdictions there have been legislative initiatives to extend the right to claim exemption from the constrictions of universally applicable equality provisions. These exemptions are of particular significance for religious organisations engaged as government contracted

New Zealand, at https://www.stuff.co.nz/business/105353363/can-a-businesses-reject-customersbased-on-religious-beliefs. 115 593_U.S. (2021).

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public service providers and previously required to fully comply with equality legislation. More recently in some jurisdictions this standardised, uniform approach had become more nuanced with greater latitude legally available to allow organisations and persons to act in accordance with their religion/beliefs/conscience. There is concern that such initiatives, by extending the scope of conscientious objection grounded on traditional Christian beliefs, will inevitably result in: a strengthening of ‘institutionalised conscientious objection’; a commensurate vetoing of certain types of public service provision; and the ghettoisation of those services with accompanying additional stigma, costs and trauma for users. However, as of late 2021, in all Part III jurisdictions the most pressing aspect of conscientious objection continued to be the extent to which it can be exercised in conjunction with government efforts to apply health and safety measures to combat the Covid-19 pandemic. A key component common to all jurisdictions, the national rollout of covid vaccines, had met with a significant degree of resistance, some from conscientious objectors refusing to comply with what they perceived to be unwarranted State intervention in private life. Vaccine refusal for any reason, including conscientious objection, clearly weakens herd immunity or negates the possibility of achieving it and poses a significant public health threat in all Part III jurisdictions and elsewhere. How to address this form of dissent in a global pandemic context presents a fundamental challenge to democratic society. As governments experiment with various ‘carrot or stick’ strategies, many are moving incrementally towards mandating vaccination—initially for prioritised groups such as public service personnel—for their citizens. Such a step, involving State intervention on a mass scale—some of it non-consensual—would, arguably, threaten the concept of ‘citizenship’ and constitute a re-interpretation of the State/citizen relationship not experienced by the democratic societies in the Part III jurisdictions since WWII.

References Fridman A, Gershon R, Gneezy A (April 2021) COVID-19 and vaccine hesitancy: a longitudinal study. PLoS One, at: https://journals.plos.org/plosone/article?id¼10.1371/journal.pone.02 50123 Hickling-Hudson A, Ahlquist R (2003) Contesting the curriculum in the schooling of indigenous children in Australia and the USA: from Eurocentrism to culturally powerful pedagogies. Comp Educ Rev 47(1):64–89 Moon G (2003) Complying with its international human rights obligations: the United Kingdom and Article 26 of the International Covenant on Civil and Political Rights. Eur Hum Rights Law Rev 8(3):283–307 Spring J (2001) Deculturation and the struggle for equality. McGraw Hill Higher Ed., Burridge, Illinois, p 4

Chapter 11

A Democratic and Diverse Society: Balancing Equality and Exemption

Abstract This concluding chapter returns to reflect on some basic principles and concepts introduced at the outset, in the light of the trends noted in Part III. It examines the relevance of cultural heritage: it considers the potential of conscientious objection to contribute to a pluralistic, diverse and stable democratic society; and weighs the risk of the principle having the contrary effect of licensing evermore “islands of exclusivity”, thereby either promoting religious pluralism or further fragmenting social coherence. In so doing it examines the public/private balance of interests and considers the extent to which the proportionality principle may contribute to that balancing exercise.

11.1

Introduction

Democratic societies rely on exemptions—including those associated with conscientious objections—from the requirements of equality and non-discrimination law as a means of ensuring protection for the interests of those whose religion/beliefs/ conscience might otherwise be disproportionately harmed. In a context growing evermore secular and religiously fragmented, against a background of resurgent fundamentalism emanating from the Middle East, the balancing of equality and exemption rights has become an increasingly difficult exercise for contemporary governments in all Part III jurisdictions. The tension between the prescriptive provisions of equality law and exemption privileges on grounds of religion or belief is far from being merely academic:1 religious medical professionals have been fired for refusing to work with women seeking abortion;2 regulators have forced the closure of religious facilities due to their inability to meet legislative non-discrimination requirements;3 and in one

1

Ahdar and Leigh (2013). In Canada, see Moore v. British Columbia (Ministry of Social Services), 2019 ONCA 393. 3 See, Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales [2011] EqLR 597. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_11

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country legislation was introduced specifically to prohibit abortion.4 More recently: some legislators have moved to defend religious beliefs by, in effect, prohibiting abortion5 and by granting public officials the right to be exempted from their contractual duties if, on grounds of religion/belief they disagree with same sex marriage or consider gender identity to be immutable;6 while in late 2021 the USSC ruled that a religious organisation providing public services may legally refuse to engage with same sex couples.7 The consequences for hundreds of religious organisations and tens of thousands of citizens—religious or not—have been profound. In short, the equality/religion interface is now uncertain and highly contentious. There is every sign that accommodating dissent and conscientiousness is set to become a serious challenge for democratic society. This concluding chapter returns to reflect on some basic principles and concepts introduced at the outset, in the light of the trends noted in Part III. It examines the relevance of cultural heritage: it considers the potential of conscientious objection to contribute to a pluralistic, diverse and stable democratic society; and weighs the risk of the principle having the contrary effect of licensing evermore “islands of exclusivity”, thereby either promoting religious pluralism or further fragmenting social coherence. In so doing it examines the public/private balance of interests and considers the extent to which the paramountcy principle may contribute to that balancing exercise.

11.2

Cultural Heritage and Pluralism

The white, Christian, cultural context that provided the framework for building the democratic institutions of the Part III jurisdictions continues to underpin their contemporary multicultural, pluralistic societies (see, further, Sect. 2.2.1). The fact that the same Christian principles infused constitutions, legislation, legal processes and judicial decisions did much to build a degree of cultural homogeneity within and between those nations. Christianity and its canon law precepts have provided a shared and unifying thread, producing an almost identical jurisprudence schematic—certainly as regards family law and related morality matters—well into the twentieth century. That consensus continues to provide the grounds for those of traditional religious beliefs to challenge the changes brought about by equality and human rights legislation.

4

In Ireland, the Protection of Life During Pregnancy Act 2013. See, the Texas statute SB 8 (2021). 6 See, the Mississippi House Bill 1523 (H.B. 1523), also known as the Religious Liberty Accommodations Act (2016). 7 Fulton v. Philadelphia, 593_U.S. (2021). 5

11.2

Cultural Heritage and Pluralism

523

11.2.1 Pluralism Balancing the political commitment to promoting pluralism against the traditional respect due to religious/cultural heritage and the associated entitlement to exemption privileges, is now a dilemma that all Part III jurisdictions are working through. The evidence collated in preceding chapters shows that generally, in those jurisdictions, the State had until recently adopted the role of impartial organiser of religious pluralism: striving to ensure that religious adherents and their organisations were left to practice their religion and to function with autonomy in managing their own internal affairs; provided they did so without unduly infringing the rights of others or the public interest; and where support was required, the State provided it in an even-handed manner. Again, generally, the State would seem to have taken the necessary steps—through application of equality and non-discrimination laws—to address intolerance, stigmatization and negative stereotyping of persons based on their religion or belief, and to counter associated acts of violence or incitement to hatred. However, more recently, the Part III evidence points to the State in some jurisdictions setting off down a somewhat different path.

11.2.1.1

Religious Pluralism

It has been said that in democratic societies the role of the State is not to remove causes of tension between religious organisations, or within them, which might thereby constrain the flowering of pluralism, but to ensure that they tolerate each other.8 This presupposes that such organisations and their interests are effectively represented, in all relevant institutions and processes, in the first place.9 In practice, the tension between the traditional Christian cultural infrastructure and the now proliferating minority groups, creates difficulties for government and myriad opportunities for conscientious objection.

11.2.2 Diversity A definitional requirement of a modern democratic State, such as those featured in Part III, is that it should accommodate impartially those of all religious beliefs and those of none while fostering the pluralism, tolerance and broadmindedness needed for a civil society (see, further, Sect. 2.4.1). Religious diversity, an important aspect of pluralism, is a particular challenge for any contemporary democratic society 8

See, Hasan and Chaush v. Bulgaria [GC], Application No. 30985/96, ECHR 2000-XI, Metropolitan Church of Bessarabia and Others v. Moldova, Application No. 45701/99, ECHR 2001-XII and Serif v. Greece, Application No. 38178/97, ECHR 1999-IX. 9 See, further, O’Halloran (2021), at Chap. 1.

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which will invariably contain several religions and multiple belief systems. In actuality, however, each of these jurisdictions bears the heavy imprint of Christianity, a fact that arguably requires restrictions being placed on the freedom of religion and affirmative action to be deployed by the State, in order to encourage an equitable balance between the various religious communities and between them and their secular counterparts.

11.2.2.1

State Approach to Religion and Cultural Heritage

As noted earlier (see, see, further, Sect. 1.2.2.1), the evidence indicates that the State in all Part III jurisdictions has begun taking a positively benign approach towards religion, specifically Christianity. This may in part be due to a concern that a combination of secularism and equality legislation is disproportionately harming Christian religious organisations, its preferred public benefit service delivery partners, upon whom it has become increasingly reliant. More probably, however, it is likely due to contemporary governments being prompted by populist pressure to revive a sense of national identity by: developing a duty of care towards the national cultural heritage; protecting it from being undermined by a growing secularism, eroded by equality laws and diluted by multiculturalism; and, perhaps, to assert the values of Christian democratic society in the face of threats from the barbarism of Islamic extremism, the insitutionalised collectivism of China and the nascent ideological stirrings among far right political groups. The new concern for cultural legacy may explain the emerging widespread legislative initiatives which seem intended to formally recognise and protect the rights of those who wish to manifest or defend their traditional Christian beliefs and to grant them exemption privileges from the otherwise universally applicable provisions of equality and non-discrimination law. This change in approach is evident in initiatives such as: the creation of government bodies with responsibility for religious matters; the development of government funded outreach affirmative action projects targeting specific religious communities; and the gradual but steadily broadening legal recognition being given to the right of health care professionals and others to be excused from participating in public services to which they object on grounds of religious belief, that belief being almost always based in Christianity.

11.2.2.2

The Culture Wars and Jurisdictional Stratification of Morality Issues

The morality and values represented in the clashes over abortion, gay marriage and medically assisted death—together with the plethora of other religious or proxy religious issues identified throughout this book—derived from the shared jurisdictional Christian heritage and ethos, now provide an agenda that similarly stratifies and extends the ‘culture wars’ across all Part III jurisdictions. However, if democracy in the developed western nations is to be representational and effective then

11.2

Cultural Heritage and Pluralism

525

more room must be found in the culture wars for non-Christian religious values and more attention must be given to the currently marginalised communities. Morality based disputes are becoming problematic as secularism grows and religion becomes more attentuated as it encompasses a myriad of disparate beliefs, while adherents of other religions—particularly Muslims—join the resistance to contemporary social mores in the increasingly pluralistic democratic societies. In some ways these disputes can be seen as a further stage in a process of working out an authentic identity for societies long constricted by the common architecture of a Christian culture derived from their shared colonial history and now increasingly homogenised by the myriad aspects of globalisation.

11.2.2.3

Contemporary Social Constructs

Some of the more current and heated, morality-based disputes center on concepts— race, ethnicity, gender etc—once considered immutable but now viewed as social constructs and as such open to change. This makes the relevance of such disputes to democratic society hostages to fortune due to the degree of uncertainty accompanying those constructs. The binary gender debate in particular, appropriately reflective of the concept of gender fluidity, has few anchor points but generates strident arguments: internal, notably between feminists and trans persons; and external, between fundamental religious adherents—Muslims, Orthodox Jews and Evangelical Christians—and the LGBT community. In such a context, the veracity of conscientious objection may be equally uncertain.

11.2.3 Conscientious Objection in a Non-Christian Context Conscientious objection would seem poised to be launched on the next stage of its evolutionary development: to perhaps transcend its roots in Christianity and meet the challenges of pluralism in the range of religions and beliefs that typify contemporary democratic societies. There is understandable uncertainty regarding its capacity to extend—while retaining coherence in terms of conscience and morality—beyond its religious/cultural origins.

11.2.3.1

Non-Christian Religious Beliefs

As its Christian cultural origins make room for other beliefs, the future parameters of conscientious objection become more difficult to discern. The courts have, of course, already become familiar with some examples such as: the non-stunning of animals prior to slaughter for human consumption; open air cremations distanced from residential areas; refusal to grant a get enabling a wife to divorce; the problems associated with Islamic mahr agreements; wearing the burqa in various settings; and

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not working on the sabbath etc. Subject to the public interest, other ocassions for conscientious objection that may in future appear before the courts or regulatory bodies could include: male Muslim doctors and ancillary medical staff who refuse to undress or examine female patients; family therapists who will not work with same sex couples; lesbian witch care assistants who decline to work with male or trans persons; Muslim parents refusing to send their children to schools that are not segregated on a gender basis, or require attendance at Christian events, or which provide SOGI related educational material. As secularism and religious pluralism gain traction, the democratic societies will have to cope with a span of conscientious objection reflective of the variety in types of belief.

11.2.3.2

Indigenous People

The prevailing uncertainty is crystallised by the plight of the Indigenous communities as they strive to free themselves from centuries of colonial policies which, alternating between assimilation and disregard, have left them fighting to retrieve the basic elements of cultural identity—language, customs, territory and their religious beliefs—and to do so in the face of continued encroachment from those who would disrupt their communities, despoil their land and with it their places of worship. International legislative protection has begun to address the human rights and living conditions of communities that for generations have endured third world conditions, hidden in plain sight, at the heart of the most developed first world nations. At much the same time, not coincidentally, domestic equality and non-discrimination laws are also becoming more relevant. The probability is that there will now be a growing interest in making Indigenous values and beliefs amenable to representation through established legal procedures. Once translated into a contemporary mainstream legal vernacular, the scope for conscientious objection in an Indigenous context is considerable.

11.3

Democracy and Dissent

Democratic societies evolve, differently and imperfectly, through a process of incremental change: mostly through political reform as instituted by government, guided by Parliamentary initiative and ultimately as interpreted and applied by the judiciary; but also in response to expressions of dissent from organisations and individuals. That dissent may be triggered, suddenly and unexpectedly by events but more often its roots lie in a gradually building sense of unease, disquiet or

11.3

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527

disconnect among networks of citizens. The “social capital”10 nurtured within such networks provides a sounding board for articulating and then, perhaps, to focus action for change in terms of lobbying, protest or acts of violent and non-violent civil disobedience. Among the array of such social activists, and at times at the forefront, there are always some conscientious objectors who, as noted earlier, are driven by personal religious or other beliefs to challenge an aspect of life in a democratic society they perceive to be unconscionable (see, further, Sect. 1.2.1.3).

11.3.1 Dissent and Development The freedom of citizens to express dissent and the obligation of the State to address its causes—is fundamental to the nature of a democratic society (see, further, Sect. 2. 3.2). The ways in which our societies have dealt with the dissent generated by successive waves of challenges—including but not confined to colonialism, slavery, suffrage, racism, fascism, feminism, etc—have enabled them to evolve democratically. Given the degree of cultural, religious and legal homogeneity it is unsurprising that dissent in the Part III jurisdictions has historically pushed the boundaries of democracy at much the same time, in the same way and on much the same agenda of issues. The choices made then were essential to building a democratic society. Equally, the choices being made now in relation to the recognition and protection of matters such as—reproductive rights, gender inequality, the rights of sexual minorities and the needs of some for a medically assisted death—are essential to furthering the democratic project.

11.3.1.1

Cancel Culture etc

Obviously there are differences of degree here, the future direction of democracy is not going to turn on some of the choices currently demanding attention: the use of male/female pronouns, the ‘woke’ debate and the relevance of ‘cancel culture’ are probably little more than transient offshoots thrown up by a deeper turmoil in social mores; but the capacity to acknowledge and make room for them is a positive health indicator for a democratic society. Cancel culture and other efforts to expunge history, or to redact an established record, are more than non-conducive to promoting the health of democratic society, they are antithetical to it. While such a society must always accommodate revision and be prepared to adjust accordingly, if it is complicit in attempts at erasure then it is edging towards the shadow of Pol Pot.

10

See, Putnam (2000). Also, see, Boix, C. and Possner, D., Making Social Capital Work, at: https:// www.semanticscholar.org/paper/Making-Social-Capital-Work%3A-A-Review-of-Robert-in-BoixPosner/5c5fca600893e2f3d40a8641177af90a570e45a2.

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Now as then, dissent has been driven by social activists among whom were many who exercised their conscientious objections to the status quo. Wrestling with the balances to be struck, accepting that ongoing adjustments will need to be made, and promoting inclusiveness in all related decision-making, are among the primary characteristics differentiating a democratic society from all others. It is unsurprising, also, that conscientious objections followed the same pattern in all Part III jurisdictions: exemption when granted was both in respect of much the same agenda of issues, striated across all jurisdictions and on much the same terms. The shared cultural/religious values permitted a clear understanding of the rationale for exemption. This continued to be the case as regards the further contiguous extension of that agenda. Only in recent years has the issue of the right to conscientious objection begun to drift off its accustomed anchor points in traditional religious and cultural values. As it does so, uncertainty grows as to both the future rationale for exemption and for the parameters of conscientious objection.

11.3.2 Religion and Dissent Religion has played a leading role in establishing the morality and rules that shape the laws governing relationships within and between families and communities. It has done so for the millenia that religion has co-existed with democracy. Along the way, religion or like forms of belief have also generated and justified conscientious objections to issues arising from the moral dilemmas faced by successive generations in the developing democratic societies. While undoubtedly acting as a cohering social force for fellow adherents, religion has also served as a toxic instrument for reinforcing differences, promoting social division and for generating national and international wars. On the one hand, it has been argued that democracy and religion need not be incompatible: democracy, it is suggested, provides the best framework for freedom of conscience, the exercise of faith and religious pluralism; while religion, through its moral and ethical commitment, the values it upholds, its critical approach and its cultural expression, can also further the development of personal conscience and be a valid partner of democratic society.11 On the other, Nehushtan has argued that ‘[w]hile every comprehensive theory or ideology is intolerant by its nature, religion is uniquely and unjustly intolerant, and in a way that poses unique challenges to the tolerant-liberal State’.12 The record is indeed mixed. Throughout the centuries, most recently in the latter half of the twentieth and continuing into the twenty-first, while religion has been a coalescing force for some

See, CoE, Parliamentary Assembly, ‘Religion and Democracy’ report (1998), at para. 5. See, further, at: https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID¼8426& lang¼en. 12 Nehushtan and Coyle (2019), p. 124. 11

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communities and nations it has also demonstrated an ability to cause social divisions and provide grounds for violent confrontation. Where religion or other forms of belief shade off towards the closed group thinking typical of ideology and cults, or are flaunted as badges of difference, then a sense of separate identities is exacerbated with destructive consequences for the wider community. Further, as the range of new religions and beliefs proliferate—mutate, overlap or are displaced—then, arguably, the traditional currency of religion is being devalued. As the social homogeneity fostered by common adherence to traditional religions gives way to secularism, to loyalties cultivated on social media platforms and to an ever-widening spectrum of beliefs, so the democratic societies are becoming steadily more conflicted in terms of religious/cultural values. This, inevitably, gives rise to an increase in the volume and variety of conscientious objections from those either defending or challenging the moral code underpinning their cultural heritage and embedded in the associated religion and belief. Again, arguably, it may also mean that conscientious objection as a moral force is becoming correspondingly more frayed and attenuated and in danger of losing its traditional coherence, authority and gravitas.

11.3.2.1

Continued State Preferencing of Traditional Culture/Religion

As clearly evidenced throughout this book, the continued State preferencing of Christianity and its associated values is a wholly logical feature of the Part III jurisdictions, given their centuries of shared history. It is also a feature under increasing pressure from equality law and from the many aspects of contemporary pluralism. The statutory exemptions available, on grounds of religion or belief, to religious entities—organisations, service providers and individuals—permitting them to withdraw from types of service provision (abortion, SOGI related services, medically assisted death etc) and to be excused from complying with equality and non-discrimination constraints when hiring and firing staff, are being broadened: usually by the judiciary but also by legislators, particularly in the U.S. The same grounds provide an entitlement to significant tax exemptions, to State grants for the maintenance of places of worship and permit public displays of religious affiliation, etc. Moreover, centuries of involvement with public benefit service provision has enabled religious organisations, largely Christian, to cultivate a working partnership with government which places them in a position to exercise considerable leverage in shaping policy relating to family and community services. As mentioned above, this is now being recognised and institutionalised in some Part III jurisdictions. All such developments run counter to a challenge from secularists and others that questions the social utility of continuing the State preferencing of religion and other forms of belief: not that they should be denied State support but that they should receive neither more nor less than any other nexus of organisations in the nonprofit sector. Any continued such privileging, when balanced against the needs for equality

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in a democratic society, clearly has implications for similarly continuing the privileging of religiously based conscientious objection.

11.3.2.2

Dissent and Manifesting Religion/Belief

Problems on the equality/religion interface tend to arise when it comes to agreeing where, in a democratic society, the thresholds should be fixed for permitting or vetoing private manifestations of religious belief in public places, or for balancing the tensions between religious adherents and others as regards accessing public services such as abortion and contraceptives, or in determining eligibility for employment opportunities in religious organisations etc. As previously demonstrated, in all Part III jurisdictions these problems were manifested in the same pattern of issues generating the same vetoes. As Trigg says “the problem is where to draw the line between religious practices we may not share but must tolerate, and those that cannot be allowed in a democratic society”.13 Arguably, within the Part III jurisdictions a toleration spectrum is emerging. At one end there is Québec’s Bill 21, which became law in June 2019 and prohibits manifestation of religious belief through the display of religious symbols by publicsector workers in the workplace, an approach currently being adopted in the U.S. as evident in some recent rulings of the USSC. The other end is perhaps to be found in the ECtHR application of the principle of proportionality: a balancing of competing interests commensurate with its definition of a ‘democratic society’ (see, further, below at Sect. 11.5.4). In between these two reference points, the Part III jurisdictions have demonstrated a willingness to accommodate diversity but there is accumulating evidence of a general firming up of policy in favour of extablishing safe zones for religion and adherents and of preferencing Christianity relative to other religions and to secularism.

11.3.3 Reform and Dissent Egalitarian reform—ending gender inequality, for example, or reducing the gini coefficient or overcoming racism—or any other such large scale change in the discordant norms of contemporary democratic society are well beyond the reach of conscientious objectors but their dissent may nudge change in that direction (see, further, Sect. 2.3.1). The nudging may take the form of passive non-compliance with specific civic responsibilities, such actions or inactions being intended to do no more than register a personal veto against something perceived as unconscionable. It is instructive that this discretionary mode of resistance would seem to be restricted to

13

Trigg (2012), p. 110.

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531

the more liberal democracies.14 Tolerance for dissent that may breach measures put in place by elected representatives of the people for their benefit—that offend the sense of public morality or damage the collective understanding of citizenship—is not a characteristic of all democratic nations. Indeed, there are strong indications that tolerance thresholds for accommodating dissent that challenges traditional cultural heritage norms are falling as populist leaders—aided by far right social activists— strive to revive nation State ideals. The UK BREXIT initiative is possibly symptomatic of the wider stirrings of nationalism indicative of general inward looking tendencies as political leaders protect borders and assert the distinctive racial, religious and cultural characteristics claimed to constitute national identity.

11.3.3.1

Emerging Trends

Government resposes to more recent challenges do not auger well for democracy. Despite generalised political assurances that—as of late 2021—the Part III jurisdictions were moving out of both the migrant crisis and the Covid-19 pandemic, while the threat of ISIS terrorism was at least in abeyance, the evidence suggests that pressure from these sources will continue to trouble the democratic societies for the next few years. On top of which there is unfinished business in terms of addressing matters such as structural racism, wealth inequality and misogyny—present in all these societies, but more so in some than others—and a need to revive domestic economies, together with the mounting climate change dilemma. These and other known and unknown exigencies can be counted on to trigger future social dissent and conscientious objections. Additionally, contemporary democratic societies and equality law in general would seem to be facing a new hybrid type of challenge: increasingly social problems are rightly perceived as intersectional; poverty and abortion, or racism and misogyny, or climate change and immigration etc. The levelling effects of an equality imperative, requiring a reductionist approach, is now seen as at best limited and at worst a simplistic distortion of the factors in play. So, comparing like with like does not mean that all nonprofits—such as charities and churches—can be treated the same as to do so misses the point that the latter are innately different as their purpose and actions are other worldly, being oriented towards the transcedental. Similarly, deliberately adopting identical police tactics when engaging with members of the white cultural majority and groups that have suffered intergenerational oppression—such as women, Afro-Americans and members of the LGBT community—is to discount the singular historical experience and current needs of such minority groups. The existence of organisations such as BLM, MeToo and Stonewall are founded on precisely that point. Arguably, this perception is being reflected by the new reductionism in human rights which often pitches rights against each

14

Conscientious objection is prohibited in several European countries such as Sweden, Iceland, Finland and Bulgaria.

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other, an internecine conflict on issues where neither right can wholly prevail— feminism versus trans persons, for example—but which erodes their common underpinning morality and accelerates the pace of social fragmentation. This frame of reference brings its singular complexities, as one stereotype compounds another and does so in its own particular way. As Gopnik puts it:15 Overlapping identities enlist overlapping systems of subordination, in ways that can’t be caught by simple addition: someone can be black and lesbian and working class, but one can’t just add one oppression onto another. These different oppressions interact in specific ways.

Dissent and the future scope for conscientious objection have become correspondingly more complex.

11.4

Democracy and the Contemporary State/Citizen Relationship

The Christian ethos that informed civic morality in the Part III jurisdictions (see, further, Sect. 2.2.1) moulded a common understanding of ‘beliefs’, ‘citizenship’ and ‘conscientious objection’ and in so doing set the scene for the current divisive disputes that are now such a feature of their societies, most obviously in the U.S.

11.4.1 Citizenship The process which, in the latter part of the twentieth century, saw the State in all Part III jurisdictions shrink in terms of the scale of responsibility it was prepared to shoulder for public benefit service provision, left it ill equipped to respond to twentyfirst century challenges. The shunting of a swathe of services and utilities long regarded as government business—rail and mail, prisons and roads, gas and electricity, hospitals and schools etc—from the public to the private sector did more than shed responsibilities and produce a once-off firesale injection of revenue into State coffers, it inevitably altered the State/citizen relationship. The fact that the use of such services was no longer part of a citizen’s birth right—illustrated by defaulting home owners in the UK being denied access to drinking water—underscored for government and citizen that the former’s duty of care for the health and safety of the latter had been greatly diluted; as was always more the case in the U.S. than in the UK and other public welfare oriented Part III jurisdictions. Subsequently, a global economic recession, ISIS terrorist attacks, the migrant crisis, climate change, and a succession of

15

Gopnik (2019), p. 166.

11.4

Democracy and the Contemporary State/Citizen Relationship

533

vociferous social movements, all served to demonstrate a weakening of State capacity and willingess to ensure the protection of its citizens. One consequence has been the emergence of a sector of citizenry who perceive themselves as disenfranchised and alienated, without a political voice or any leverage to effect negotiated change in their modern developed democratic societies. The anarchic dissent of this marginalised sector expressed itself most recently and most troublingly at the political heart of the leading democratic nation in the Washington DC riot.16 If confirmation of the changed State/citizen relationship was needed it came with the onset of the Covid-19 pandemic, in the face of which the particular vulnerability of the democratic societies became quickly and graphically apparent. Uncertainty, as to how the responsibility for safeguarding health should be shared between citizen and State, was a prominent feature in the response of those societies and one that significantly impaired their ability to swiftly organise and maintain a consistent, comprehensive and efficient regime for managing the crisis. It often seemed that government stepped back, pushing forward public health officials, and encouraging them to assume a leadership role as though defining this type of national crisis as largely a public health matter: one where responsibilities lay between citizens and the health service; leaving government on the sidelines, assuming a role of protector of the national health system, rather than of the lives of its citizens (though perhaps more so in the UK and less so in New Zealand). A noticeable commonly shared jurisdictional policy was the government reluctance to introduce mandatory vaccination, preferring instead to offer it to groups in descending order of priority while leaving compulsory vaccination to employers as part of their legal duty to provide a safe working environment (see, further, Conclusion).

11.4.1.1

Contemporary Citizenship

In the present era of bitcoins, social media and hedge funds where the flow of information, finance and people (not to mention pandemics and terrorists) can pass unimpeded though borders, the citizen/State contractual relationship has been largely rescinded. The traditional concept of citizenship—based on a coherent and exclusionary blend of culture, nationality and residence—is no longer entirely intact in any of the Part III jurisdictions. Each State now provides rights of residence for a great diversity of cultural groups, some members of which have citizen status and some who do not. As citizenship becomes more amorphous so also the traditional loyalties of citizen to State becomes more diluted, which parallels the steady diminution of a similar loyalty to institutional religions, to communities, to professional representative bodies and also to the marital family and the larger extended family. Moreover,

16

See, further, the Washington riots of 14.11.2020 at: https://www.bbc.co.uk/news/world-uscanada-55592332.

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many citizens no longer view their passport as some form of ‘loyalty card’, a declaration of belonging exclusively to a particular State (BREXIT prompted tens of thousands of English citizens to claim EU passports): attachment issues are endemic; the internet age now provides limitless opportunities for belonging and for changing allegiances which transcend or bypass the traditional definition of citizenship; for many in the Part III jurisdictions, social media has displaced religion as a source of solace and of opportunities for developing a sense of belonging. The corollary being that the State can no longer presume and readily legislate for a fixed population of ‘citizenry’, conforming to a predictable profile. Instead, it must cater for a pluralist society, comprising a fluid amalgam of different and constantly changing groupings each of which require their cultural identity to be recognised and protected.

11.4.2 Contemporary Citizenship and Conscientious Objection Citizenship, in the Part III pluralist democratic societies, is a status that must stretch to include an ever expanding range of religions and beliefs. Given the inclusiveness of the right to freedom of religion, this status brings with it the right of citizens to legal protection for their particular religion, belief or matter of conscience. This in turn confers a corresponding right to claim—if not necessarily be granted—exemption from a civic duty on the grounds that it breaches their particular ‘religious’ commitments. Matters such as the refusal of health professionals to provide public services that they disagree with on religious grounds, and parents who refuse on the same grounds to allow their children to be vaccinated or to attend same sex schools, are rapidly becoming stress tests for the State/citizen relationship and for democratic society more generally. In short, the pluralism of contemporary citizenship, invokes a pluralism of morality with an accompanying pluralistic right to conscientiously object. Apart from being legally unwieldly, arguably such dessication must lead to moral incoherence and further social fragmentation.

11.4.2.1

Citizenship, Minority Communities and Conscientious Objection

The status of citizenship would seem to require a reasonable balance to be struck between the pluralism of beliefs and any legal entitlement to exemption from civic duties perceived as breaching those beliefs. This applies in particular to the needs of minority groups—variously differentiated by race, ethnicity and socio-economic status etc—whose loyalty tends to lean more towards the group than to the nation. In such communities the concept of citizenship and its ancillary components of civic duty, shared values and conscientious objection can be open to interpretation.

11.5

The Public/Private Balance and the Proportionality Principle

535

All Part III jurisdictions harbour minority groups identified in accordance with their singular needs including, the LGBT community, in some cases an Indigenous community, the elderly, those suffering from a specified disability, the reluctantly pregnant, migrants etc. Their members are clearly obliged and entitled, in accordance with equality law and other legislation, to fully exercise their civic rights and duties as citizens in relation to public and commercial services etc, without compromise. In practice, however, the State, professionals and religious entities may well deny some of them their citizens rights on grounds of conscientious objection. This is problematic for a democratic society required to value all equally and in which differential State treatment on civil matters is only justifiable on the basis of affirmative action.

11.5

The Public/Private Balance and the Proportionality Principle

At the heart of the contention regarding conscientious objection is the matter of public/private balance: should a modern democratic society grant an individual or organisation a right to opt out of, or to veto, an established public good on the grounds of private religion/belief/conscience? What roles do government and professional bodies play in the balancing of public and private interests?

11.5.1 Public/Private Interests The areas that provide the main settings for domestic religious contention in the twenty-first century are much the same as in the twentieth and for a long time previously: family, education and medicine form the traditional heartland for religion’s social role; while its influence is prominent in employment, housing and general social service provision, it is less penetrative. These are also the areas where modern equality and non-discrimination legislation, necessarily, has most impact and where the tension between public and private interests remains most fraught.

11.5.1.1

Religion and Equality

To some, the conflict between religion and equality now seems endemic and structural: a socially polarising dynamic; singularly representative of a prevailing legal/moral dichotomy and symptomatic of the times we live in. Until recently, equality and non-discrimination legislation was clearly adversely impacting religion. Religious organisations providing outreach facilities and services—in relation to matters such as faith based schools, adoption, marriage and

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family counselling, youth clubs and children’s camps—where religious principles conflict with statutory equality requirements, had found their government service provision contracts terminated. Schools that designed curricula to include SOGI related information were heavily criticised by religious organisations and parents on the grounds that this violated their beliefs. Religious adherents employed in public service agencies such as child care, wedding registry offices and family planning programmes experienced a similar conflict causing some to be fired while others felt obliged to resign. Religious colleges and universities providing student accommodation had encountered the same issues when faced with applications from married same-sex couples. Religious employers had found themselves compromised when staff entered into same sex relationships. Government grants and contracts to religious universities and charities were being discontinued when recipients were unable or unwilling to accept the limitations imposed by equality legislation and the very many religious institutions with charitable tax-exempt status were in danger of losing that privilege, particularly if they maintained a conscientious objection to same-sex marriage. The range of actual and possible disruptions to life in a democratic society, as a consequence of the conflict between religious principles and equality and non-discrimination legislation, seemed limitless.

11.5.1.2

Religion and Exemption

Religious organisations have charitable status, a fact which brings an entitlement to preferential treatment in terms of tax privileges and government grants in addition to exemption rights in respect of equality and non-discrimination laws; the latter consituting a form of ‘institutionalised conscientious objection’, applicable in all Part III jurisdictions, which confers sweeping immunity from many equality constraints. This gives rise to reciprocal conscientious objections: from such organisations and their adherents to laws and practices perceived as breaching their religious beliefs; and from secularists and others who protest that there is no good reason why taxpayers should be left to subsidise the discriminatory practices (religious, sexual and gender) of religious organisations. There is an argument that religious exemptions should be conditional upon evidence that they will not have a discriminatory impact upon statutorily protected groups—members of the LGBT community, racial minorities etc—but arguably such a condition would simply shift the discrimination towards those not designated as protected as the exemption cost has to fall somewhere.

11.5

The Public/Private Balance and the Proportionality Principle

11.5.1.3

537

Islands of Exclusivity

Esau, in his “islands of exclusivity” argument,17 suggests that the above-mentioned privileges are wholly justifiable on public benefit grounds and that the continued preferencing of religious organisations and their adherents is in the public interest. Arguably, however, such a policy penalises the irreligious and the indifferent as they are then burdened with making good the tax revenue shortfall and complying with equality and non-discrimination obligations while those who profess adherence to high moral standards are spared. In a democratic society, it is questionable whether the State should require beliefs per se to be subsidised and the holders of such beliefs granted a free pass from particularly onerous constraints of equality and non-discrimination law. Arguably, in so recognising and preferencing their separate status, the State encourages the forming of religious and similar belief groups to the detriment of a coherent social morality while exacerbating the dissent and conscientious objections from others. In terms of the public interest, the question arises as to whether the net public benefit of such organisations and their adherents sufficiently compensates for the public benefit deficit incurred as a consequence of their exemption privileges.

11.5.2 Public Interest and Conscientious Objection Necessarily, the public interest in the subjects that generate conscientious objections is as embodied in the government’s current policies and legislation. Such subjects are those addressed in the jurisdiction specific profiles in Part III. It would seem probable that for at least the early decades of the twenty-first century this will continue to be the case with the primary focus remaining on equality and non-discrimination in general and on women’s reproductive rights and on those of sexual minorities in particular. However, while the contentious subjects may remain much the same it is possible that the public/private balance in relation to them will change. It is hard to judge how and to what degree the State/citizen relationship will be readjusted as a conseqence of their immersion in the Covid-19 pandemic, but it is unlikely to continue quite as before. While this experience may yet have some way to run, there would appear to be indications of mutual dissatisfaction from both parties: the State with the level of citizen dissent resulting in a small minority remaining unvaccinated, thus continuing the pandemic; citizens with the high death toll and constraints on private and commercial life, thus jeopardising families and general socio-economic stability. For both parties the pandemic impact may lead to a lower level of tolerance for conscientious objection (see, further, at ‘Conclusions’).

17

Esau (2009–2010), p. 389; Esau (2000), p. 719.

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11.5.2.1

11 A Democratic and Diverse Society: Balancing Equality and Exemption

State Neutrality

As mentioned earlier (see, further, Sect. 1.2.2) this principle requires the State to remain neutral in its dealings with all religions: to make no difference between religions or beliefs and no difference between them and secular entities. It is a key principle in the context of the public interest as it relates to conscientious objection and the failure of the State to honour it frequently generates objections, including those that are conscientious.18 The indications are that the principle is likely to become steadily less viable, as it has already done in the U.S. where a partisan State would seem intent on positively discriminating in favour of religion—specifically Christianity—and on adjusting law, policy and the composition of the USSC into closer alignment with traditional religious/cultural values.

11.5.2.2

The Politicisation of Conscientious Objection

In the U.S., until very recently, it had seemed as though the public dimension to conscientious objection had more or less plateaued in the culture wars under the rubric of well established USSC rulings, most notably that of Roe v. Wade.19 The set agenda of issues remained the subject of much public contention and had been joined by others, mainly concerning matters of sexuality, but essentially the culture wars absorbed the simmering dissent. Arguably that level of containment ended with state government religious liberty legislative initiatives: specifically with the Mississippi House Bill 1523 in 2016, the similar Bills slated for enactment in 12 other states, and the Texas statute SB 8 in 2021. The USSC has also signalled that culture war issues have returned to the political arena when in a ruling—most unusually unanimous—it determined that a government agency was not entitled to ban a religious agency from government contracts on the grounds of its refusal to work with same sex couples20 (see, further, at Sect. 6.8.2.1). Hearings that are pending in relation to the Mississippi Bill and on gun laws in New York have a similar potential to lift hot button issues from the culture wars arena, reset its goal posts and feed the outcomes into contemporary politics. It is unlikely that this conservative reappraisal of the religion/equality balance will be restricted to the U.S. In many countries there are indications that the State is reviving traditional, conservative Christian cultural values and initiating policies to similarly legitimise or strengthen opt outs to equality laws on grounds of religion or religion-like beliefs. It would seem that matters formerly treated as grounds for conscientious objection are becoming politicised and adopted by populist leaders and political parties.

18

See, for example, O’Halloran (2021). 410 U.S. 113 (1973). 20 Fulton v. Philadelphia, 593_U.S. (2021). See, also, California v. Texas, 141 S.Ct. 2104 (2021). 19

11.5

The Public/Private Balance and the Proportionality Principle

539

11.5.3 Private Interest and Conscientious Objection Over the past few decades the judiciary—particularly the USSC and the ECtHR— have developed a considerable body of human rights jurisprudence relating to private legal interests. This has largely involved a focus on the principle of a right to personal autonomy and associated rights to privacy and dignity. The rising tide favouring autonomous rights would seem to have similarly elevated the importance attached to personal beliefs and the right to conscientious objection with a consequent need to consider relative adjustments to laws that, by promoting the common good, impose constraints on freedoms of individuals including their beliefs. Neuman would seem to have this in mind when he points out that:21 . . . beliefs may be very important and cogent to those who hold them; they are absolutely protected as beliefs, and the practices they entail are covered by religious freedom and must be reconciled with countervailing interests such as the rights of others. If the result of such a reconciliation is that the believer cannot act in accordance with the practice within a particular context, then it becomes relevant to ask whether a stricter standard of justification should be applied . . .

Alternatively, of course, such an approach may feed an unconstrained proliferation of disparate beliefs and, by boosting private interests, detract from a coherent public morality.

11.5.3.1

Professional Bodies

Conscientious objection has the potential to undermine the integrity of representatve bodies, compromise the autonomy of professions and factionalise professionals and society more generally.

11.5.4 Balancing Public/Private Interests: The Proportionality Principle The proportionality principle is the key to determining the balance to be struck between public and private interests in relation to the right of conscientious objection in a modern democratic society. Differentiating those sets of interests is far from easy but a line can at least be drawn between the public and private subjects of conscientious objections: there is clearly a meaningful distinction between the locus standi of public actors dealing with public matters (e.g. public service doctors and abortion) and private service providers offering commercial opportunities (hospitality proprietors and same sex customers). Arguably, any such balancing exercise would also

21

Neuman (2021), p. 190.

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take into account the relative importance of civic obligations (medically assisted death as opposed to baking a cake) and the moral merits of a conscientious objectors’ beliefs (Christianity’s respect for life as opposed to Pussy Church’s championing of lesbianism).22

11.5.4.1

The Proportionality Principle

This principle requires that all legal actions and State decisions be established by law, be necessary, relevant and impose the least restrictions on the rights of the individual. It further requires any loss from the restriction imposed to be commensurate with the benefit from the aim pursued. It is well referenced in the legislation and caselaw of all Part III jurisdictions and although sometimes regarded as a slippery concept, open to interpretation and prone to be used to obscure or avoid a straightforward conflict of rights, it has become the judicial weapon of choice in democratic societies; in practice often accompanied by a ‘reasonableness’ standard, even if discretely applied.

11.5.4.2

Conscientious But Not Determinative

The proportionality principle clearly has a double role: determining not so much whether an objection—however sincere, cogent, serious etc—can be construed as conscientious, but whether having been so construed it is nevertheless negated by other more weighty considerations; and whether a particular form of State intervention is justified by the anticipated gain being greater than next best option, relative to the respective pain—or degree of adverse effect on civil liberties—inflicted. Such a principle applies not just to the roles of individuals and State but also to corporate entities including religious organisations and their exercise of ‘institutionalised conscientious objection’. It was a principle espoused by Justice Scalia who once warned against “a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs”.23 The latter clause seems prescient, cautioning of the risks of slipping into the current ‘abortion in Texas’ type situation. Perhaps there is a another broader question here around the issue of how, in the absence of actual tangible harm, the law should approach—differentiate, weigh and respond to—the relative significance of conscientious objections that are repugnant (e.g. non-belief in the holocaust), those that are merely facile (e.g. belief in the Jedi), those that are personal (e.g. vegetarianism), those that are personal but exercised in a public service capacity (doctors and belief in sanctity of life) and those that are personal but have potential to cause public harm (non-belief in vaccination) and the

22 23

See, generally, Nehushtan (2015). Employment Division v. Smith (1990) 485 U.S. 660, at para. 890.

11.5

The Public/Private Balance and the Proportionality Principle

541

relevance, if any, of the criminal law. Arguably, in a democratic society—where civil liberties and citizenship are of central importance—conscientious objection and the response of the State should not be shoehorned into a ‘one-size-fits-all’. Instead, the proportionality principle suggests a parsing of the exemption entitlement for individuals and religious organisations and also for permissible State intervention: a sliding scale justifying deviation from the norm—as required by laws of universal application—in accordance with the gravity of the matter for the objector’s conscience when weighed against the anticipated consequences for society.

11.5.4.3

Exemption: All or Nothing

In practice, an exemption from a civic duty on grounds of conscientious objection is generally sought with a view to being exercised on an all or nothing basis: beliefs being not susceptible to comromise; belief in the sancity of life for the purposes of being exempted from involvement in combat duties or abortion procedures, for example, leaves no room for equivocation. Moreover, exemption means not being complicit in any aspect of the morally impugned process and not being responsible for facilitating others to achieve the same end. However, as with the right to freedom of religion, while the belief is legally sacrosanct and the believer wholly entitled to be so committed, any action taken to manifest their beliefs must be conditional upon it not having a disproportionate adverse affect upon the rights of others.

11.5.4.4

Compensation

Proportionality may also come into play when considering how to address the quotient of public benefit lost as a consequence of conscientious objection. This gives rise to two issues: the question of service referral and the matter of compensation. In relation to the first, the gap left by the conscientious objector—whether it terms of service in the armed forces, non-participation in abortion, assisted death procedures or the tax exemption privileges of a religious organisation etc—will almost certainly need to be made good by a transfer of responsibility. The factors to be taken into account, over and above the validity of the objection, when determining if in a particular instance an exemption should be granted, would include: whether or not the objector had given prior notice of their conscience issues; the relative gravity of the responsibility to be transferred; the difficulties involved in making alternative arrangements; and the weight of the burden being placed on those assuming responsibility. It may well be that whereas generally all such factors can be satisfied, in some instances they cannot and consequently although the conscientious objection is valid, exemption cannot be granted. As regards the second, an exemption on grounds of religion/belief/conscience could reasonably be made subject to the objector making an alternative public benefit contribution of equal value to the quotient of public benefit thereby lost;

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11 A Democratic and Diverse Society: Balancing Equality and Exemption

though a tariff may be difficult to configure. Some form of community service and/or a financial penalty—similar to the policy employed in relation to those exempted from service in the armed forces during WWI and II—could be employed on a sliding scale basis according to the social importance attached to the exempted duty. Such a scheme would need to be calibrated to take into account matters such as: specified contractual provisions; whether an employer could have been reasonably expected to redeploy a compromised member of staff; and whether the objector bore some responsibility for placing themselves in a situation where they could have foreseen the probability of their conscience being compromised (the difference between a pro-life medical professional who opts to work in obstetrics as opposed to a Christian marriage registrar faced with a change in the law requiring that they officiate at same sex marriages). Proportionality introduces the requirement for a balancing exercise instead of exemption on an all or nothing basis.

11.5.4.5

A Principle Commonly Applied by the Judiciary

While the ECHR makes explicit reference to neither conscientious objection nor to the proportionality principle, the caselaw of the ECtHR often focuses on both and has incorporated the latter as a key component in its jurisprudence, employing it across a wide spectrum of cases24 from many jurisdictions including England and Wales and Ireland. The court’s application of the principle, in relation to the exercise of an individual’s rights under the ECHR—with application to conscientious objection—is that “regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole”.25 This “fair balance” approach takes into account factors such as the importance of competing interests, the reasonableness of the constraint on rights, and the degree of consensus among other States on the issue under consideration.26 The ECtHR often applies the proportionality principle to ascertain whether a particular measure could be achieved by a less restrictive means. In relation to matters of morality—where conscientious objections are generated—it proceeds with particular caution on the grounds that “the requirements of morals vary from time to time and from place to place, especially in our era, which is characterised by a rapid and far-reaching evolution

24

See, for example, Trykhlib (2020), pp. 128–154. See, Hatton v. United Kingdom, Application No. 11449/02, (2007) at para. 29, Tavli v. Turkey (2003) 37 EHRR 28, at para. 96 and Soering v. United Kingdom, Application No. 14038/88, (1989) at para. 89. 26 See, Lustig-Prean and Beckett v. UK, Application No. 31417/96, (2000) at paras. 91–2. See, also, Smith and Grady v. the United Kingdom, Application Nos. 33985/96 and 33986/96, (2000). 25

11.5

The Public/Private Balance and the Proportionality Principle

543

of opinions on the subject”.27 Therefore, as in Dudgeon,28 “the national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life”.29 If the very essence of the right in question has been constrained, or no justification for the imposed restrictions can be proven, then the court will regard the interference with that right as disproportionate.30 The proportionality principle has also long been recognised in the U.S. As a requirement of the Eighth Amendment it has featured both in caselaw31 and in a considerable body of academic work.32 The significance of the principle was emphasised by Justice Kennedy, in Graham v. Florida,33 who declared that “[t]he concept of proportionality is central to the Eighth Amendment”. When the USSC, in Sherbert,34 resolved a dispute concerning a Seventh Day Adventist denied welfare benefits following her sacking for refusal to work on Saturdays due to religious beliefs, it did so by formulating and narrowly construing the ‘compelling interest test’ for any law licensing State intervention in religious practice. Although this test makes no reference to the proportionality principle, nor to any requirement to conduct a balancing exercise, nonetheless in operational terms that is what it does. The court then determined that any such law would be valid only if: it imposed an actual burden on the exercise of the religion in question; and if there was a ‘compelling interest’ justifying the particular infringement complained of; and if there was no reasonable alternative that would achieve State objectives while causing a lesser degree of infringement. It ruled that “the right of free exercise . . . does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)”.35 Although the legislature promptly responded with the RFRA it did so while retaining the compelling interest test which would seem to closely follow the logic of the proportionality principle.

27

Handyside v. The United Kingdom, Application No. 5493/72, (1976), at para. 48. Dudgeon v. The United Kingdom, Application No. 7525/76, (1981). 29 Open Door and Dublin Well Woman v. Ireland, Application Nos. 14234/88 and 14235/88, (1992). 30 See, for example, Vereinigung Demokratischer Soldaten Österreichs und Gubi v. Austria, Application No. 15153/89, (1993). 31 See, for example, O’Neil v. Vermont, 144 U.S. 323, (1892) and Weems v. United States, 217 U.S. 349 (1910). 32 See, for example, Jackson and Tushnet (2016). 33 560 U.S, _No. 08-7412 (2010). 34 Sherbert v. Verner, 374 U.S. 398 (1963). 35 Ibid at p. 879. 28

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11 A Democratic and Diverse Society: Balancing Equality and Exemption

Similarly in Ireland,36 England and Wales,37 Canada,38 Australia39 and New Zealand40 the courts have demonstrated an intent to assign this principle a pivotal role as an adjustment mechanism, facilitating such rebalancing of competing interests as is necessary to permit the continued human rights compliant functioning of a democratic society. Given that this judicial principle is now an established grundnorm41 in international jurisprudence, to be applied in the “search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights”,42 there is every good reason for requiring the right of exemption from civic obligations—whether claimed by an individual or an organisation -on the grounds of conscientious objection to be exercisable subject to a proportionality test.

11.6

Conclusion

A balanced approach, requiring a restriction on rights not to be excessive in relation to the legitimate needs and interests which the specific restriction aims to redress, would seem wholly fitting in a democratic society and an appropriate response to situations that give rise to conscientious objections.

References Ahdar R, Leigh I (2013) Religious freedom in the liberal state, 2nd edn. OUP, Oxford Esau AJ (2000) ‘Islands of exclusivity’: religious organisations and employment discrimination. UBC Law Rev 33:719 Esau AJ (2009–2010) Islands of exclusivity revisited: religious organizations, employment discrimination and Heintz v. Christian Horizons. Can Lab Emp Law J 15:389 Gopnik A (2019) A thousand small sanities. Basic Books, New York, p 166 Jackson V, Tushnet M (eds) (2016) Proportionality: new frontiers, new challenges. Cambridge University Press Kelsen (2002) Pure theory of law (1934). Stanford Encyclopedia of Philosophy Nehushtan Y (2015) Intolerant religion in a tolerant-liberal democracy. Hart Publishing

36

Ryan v. Attorney General, (1965) IR 294. Doogan & Anor v. NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36. 38 Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC 37, [2009] 2 SCR 567. 39 Williams v. ‘Threewisemonkeys’ and Durston [2015] TASADT. 40 Bleakley v. Environmental Risk Management Authority, [2001] 3 NZLR 213. 41 See, Kelsen (2002). 42 Soering v. United Kingdom, Application No. 14038/88, (1989) at para. 89. 37

References

545

Nehushtan Y, Coyle S (2019) The difference between illegitimate conscience and misguided conscience: equality laws, abortion laws and religious symbols. In: Adenitire J (ed) Religious beliefs and conscientious exemptions in a liberal state. Hart Publishing, p 124 Neuman G (2021) Questions of indirect discrimination on the basis of religion. Harv Hum Rights J 34:177–194 O’Halloran K (2021) State neutrality: the sacred, the secular and equality law. CUP, NY Putnam RD (2000) Bowling alone: the collapse and revival of American community. Simon & Schuster, New York Trigg R (2012) Equality, freedom & religion. OUP, Oxford, p 110 Trykhlib K (2020) The principle of proportionality in the jurisprudence of the European Court of Human Rights. EU Comp Law Issues Chall Ser (ECLIC) 4:128–154. https://doi.org/10.25234/ eclic/11899

Chapter 12

Conclusion

Eruption of the Covid-19 pandemic in 2020 challenged individuals and nations—in ways that seemed to resonate with the themes addressed by Albert Camus in his 1947 book The Plague1—to consider the importance that should be attached to conscionable acts and to those who conscientiously object. Coincidentally, this book has evolved against that background. This book concludes with some reflections on the relevance of conscientious objection in a pandemic context, a consideration of the broader representativeness of the issues arising and some tentative conclusions regarding the functioning of such objections in the Covid-19 experience and the resulting implications for democratic society. Democratic society has been provided with its most significant test bed in generations for assessing the morality and social impact of conscientious objection. The pandemic striated the Part III jurisdictions, as elsewhere, with much the same schematic of conscionable issues. It has generated material for analysing the nature and extent of individual recourse to such objections, for identifying the appropriateness of the corresponding legal provisions, and for assessing its national significance in terms of the expression and accommodation of dissent. The material also provides a basis for international comparative evaluation: for gauging the relative performance of nations against an agenda of issues which, in this context, serve as the coping indices of a democratic society; for considering the bearing of international and domestic law on that agenda; and for measuring their respective responses to the pandemic related needs of other nations. A new field of research has opened up, well beyond the scope of the present book, which will occupy many political and social policy researchers for years. It would, however, be remiss of a book entitled as this one is not to conclude with some reflections on the relevance of conscientious objection in a pandemic context, a consideration of the broader representativeness of the issues arising and some tentative conclusions regarding the functioning of such objections in the Covid19 experience and the resulting implications for democratic society.

1

Camus (2008).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4_12

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548

12.1

12

Conclusion

State/Citizen, Covid-19 and Conscientious Objection

It is possible that in retrospect this period—2020–2021 and ongoing—will come to be viewed as one in which democratic society legitimated a switch in State intervention from benign to more assertive intrusion into matters previously legally recognised and protected as the provenance of the private and autonomous person and family. We had long become accustomed to State sponsored health and safety programmes (chlorine in swimming pools, folic acid in bread, seat belts etc), but the subsequent move to the State assuming a ubiquitous regulatory role (CCTV surveillance, gene editing/IVF, GM foods etc) seemed to occur incrementally and almost by stealth. More recently, the strengthening of borders, treatment of migrants, domestic anti-terrorism measures including the presence of heavily armed—and often masked—soldiers on the streets of our capital cities, the death penalty repeatedly inflicted by judicially bypassed drone strike, and the constant need for personal identity verification, speaks to the State taking on a role that now leans more towards policing than it did formerly. The additional overlay of Covid-19 related issues has further raised thresholds for acceptable levels of dissent within a healthily functioning democratic society. All of which may have paved the way for a reconsideration of the future role and weighting of conscientious objection.

12.2

The State/Citizen Relationship

Covid-19, it is widely agreed, crystallised some of the ways in which diversity has segued into disparity in the Part III jurisdictions. It highlighted the consequences of social inequality and, in so doing, raised serious questions regarding democratically compliant practices.

12.2.1 The State The Cicero adage quoted earlier—salus populi suprema lex esto2—was largely proven in the negative by evidence in the form of the volume of deaths that disclosed the extent to which the State failed to protect its own citizens, and those in poorer countries, from the effects of Covid-19. A notable exception is the success story of State sponsored vaccine manufacture and rollout: in most other respects State leadership failed its citizens throughout the crisis; but in relation to this critically important aspect the State did much to restore citizens trust in the obligation identified by Cicero.

2

Cicero, De Legibus III.3.VIII (‘the safety of the people ought to be the highest law’).

12.2

The State/Citizen Relationship

549

It wasn’t just that State protection mostly failed the poor and unhealthy, the worst of the pandemic fell on all socially marginalised groups perhaps especially the elderly, those with disabilities, people of colour and the indigenous communities in the CANZUS nations. Nor was State failure confined to its own citizens: by allowing the shelf-life vaccines to expire rather than donate supplies to the developing world, the developed nations failed to live up to their democratic credentials. Moreover, instead of States forging international alliances to pool resources and confront a clear common threat (as proved possible in relation to ISIS) there was evidence of a competitive national race to secure and monopolise resources such as vaccines and PEP. Nonetheless, throughout the pandemic, as before and since, religious organisations and their adherents retained exemption privileges in respect of equality and non-discrimination law: indeed, particularly in the U.S., this was a time when religion based conscientious objection was strengthened. Such developments raise questions—if any doubts remain—regarding the veracity of the State neutrality principle. Leaving aside other considerations, it is the fact of a difference in State treatment of particular groups—at a time of national crisis—that is disconcerting. This difference would seem to reflect a differential in the moral weighting the State attached to such groups. Those clearly identifiable as vulnerable suffered proportionally greater and were most obviously failed by the State. Disconcerting also is the jurisdictional difference in the government identified priority groups for mandatory vaccination: border security staff (New Zealand); hospitality staff and customers (Ireland and some U.S. states); transport staff and customers (Canada); all government employees and all employers with more than 100 staff (U.S. on a federal basis); while in England the government in October 2021 launched a public consultation as to the feasibility of introducing it for public health workers. This differentiation is hard to reconcile with the principles held to govern a democratic society which would surely suggest that frontline healthcare workers of all kinds—from kitchen staff, ward orderlies, nurses, to consultants and anyone else likely to be in the vincinity of hospital patients, nursing home residents etc—should have been voluntarily or mandatorily vaccinated, for the greater good of all citizens. Democratic credentials are also suspect due to the manner in which the State exercised authority in its response to the pandemic. Questions persist as to whether the methods employed were always compatible with those of a democratic society as defined, to a large extent, by a capacity and willingness to maintain clear blue water between the institutions of parliament, government and the courts. In practice government seemed to proceed by assuming and exercising executive powers, often without prior approval of Parliament and often by using public health guidance issued under the guise of a legally sanctioned directive.3 In this way governments elided and obscured the distinction between democratically sanctioned laws and public health guidance; it was not always easy to discern which of the many rules issued—relating to lockdown, social distancing, wearing face masks, travel etc—

3

See, for example, Hickman et al. (2020).

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Conclusion

were authorised by statute. More often than not governments chose this fudged approach rather than activate and abide by the constraints of statutes legislatively intended to empower them in times of national emergency.4

12.2.2 Citizen and Citizenship The implied contractual relationship between citizen and State undoubtedly suffered during, and as a consequence of, the Covid-19 pandemic. Loyalty to the State is perhaps among the foremost of the implied duties of its citizens. Yet all Part III jurisdictions experienced varying levels of citizen refusal to co-operate with government issued pandemic control measures and in most there were public protests against imposed constraints. While it would be wrong to suggest that all or even most of such resistance was driven by conscientious objection, there were many who did object conscientiously to what they perceived as unwarranted and heavy handed State intervention into their civic rights to freely travel, socialise etc and into their private family life. This was particularly the case if submitting to vaccination violated their beliefs. Such conscientious objections provoked angry reactions from fellow citizens who considered that the health of the population was being placed at risk by State exemptions privileging the religious. Where rules of universal application were being avoided by some on the grounds of religion then, arguably, even if this did cause them disproportionate hardship, the State was not justified in privileging that group and thereby jeopardising the greater common good—in a time of national crisis—as to do so would undermine the basic principles of a democratic society such as State neutrality, sovereignity and proportionality.

12.3

Public Health, Conscientious Objection and Lessons from the Covid-19 Pandemic

The public health system was exposed to extraordinary pressures during the Covid19 pandemic. It became the crucible that tested and stretched the State/citizen relationship. In the democratic societies of the Part III jurisdictions, as elsewhere, the role played by it may come to be seen as providing the setting for a watershed moment that altered thereafter the established legal and moral locus standi of conscientious objection. While other aspects of health care also had a significant bearing on this principle, it was the use of ‘lockdown’ and the rolling out of vaccines that most exercised all nations: as a strategy for achieving population immunity; for

4

See, for example, the Civil Contingencies Act 2004 (UK) and the Biosecurity Act 2015 (Australia).

12.3

Public Health, Conscientious Objection and Lessons from the Covid-19 Pandemic

551

consolidating trust in the State/citizen relationship; and for weighing the relative importance of conscientious objection. As the latter, along with the far more numerous anti-vaxxers—refusing on grounds of politics, doubts as to efficacy or for other non-religion/belief reasons—filled the hospitals and were blamed for continuing the transmission of infection, public respect for private acts of conscientious objection dropped considerably. Indeed, in all probability, global respect for conscientious objection, at least in this context and possibly by extrapolation to other settings, may have reached a turning point.

12.3.1 Lockdown Never in peacetime have nations had to endure such extensive State imposed constraints on the freedom of its citizens as the periodic requirement—sometimes advisory but often mandatory—for all to remain at home, often for periods of weeks, in order to reduce the spread of infection. By Spring 2020, nearly half the world’s population was subject to government curfew orders which varied from prohibiting social gatherings and closing related venues, sealing off specific residential areas, to national ‘stay at home’ orders. These constraints triggered many protests in all Part III jurisdictions—though mostly in the U.S.—a small minority of which may well have been from conscientious objectors.

12.3.2 Vaccination It has been fairly said that “mandatory vaccination, including for Covid-19, can be ethically justified if the threat to public health is grave, the confidence in safety and effectiveness is high, the expected utility of mandatory vaccination is greater than the alternatives, and the penalties or costs for non-compliance are proportionate.”5 The statement is, arguably, not only ethically but also legally justifiable, and the breakdown in rationale, while accurate in relation to the specified circumstances, is more generally applicable. The proportionality principle underpins the accuracy of this statement: the rights of a conscientious objector are generally exercisable subject only to the consequences not having a disproportionate adverse impact upon others and not being in breach of the public interest.6 The anticipated gain from mandatory vaccination is greater than the next best option, relative to the pain that may be inflicted on conscientious objectors; even if that type of objector represents a minority of all refusing to be vaccinated. That next best option is probably to bypass what might be

5 6

Savulescu (2021), p. 1. This would seem to be the thrust of the argument in Raz (1988), pp. 380–381.

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Conclusion

perceived by some as the dictatorial imposition of mass vaccination and substitute ‘vaccination passports’ for accessing certain public services (as in pre-covid Australia) or for commercial services as introduced in some Part III jurisdictions by the end of 2021. However, as this next best option fails to address the problem of transmission from and between those remaining unvaccinated, it falls a long way short of the benefits provided by the main contender. Arguably, mandatory vaccination imposed for the greater good in order to secure ‘herd immunity’, is simply the better strategy and outweighs the conscience considerations of an objector. There is no other effective way of achieving the desired outcome: the rights of the conscientious objector are fully recognised and taken into account but when weighed in the balance against urgent concerns for public health safety, they must give way. How, not if, that mandatory programme is pursued—whether by stick, carrot or combination of both—and whether applied sequentially to a hierarchical ranking of priority groups beginning perhaps with public health and nursing home staff and ending with those judged to be at lesser risk, is the real issue.7 In such circumstances, the right of a citizen to object in keeping with the dictates of their particular religion/belief/ conscience remains intact, but the exercise of that right loses legal and moral validity corresponding to the degree of prospective harm caused to others. In a democratic society, a private unilateral veto cannot prevail in circumstances where it threatens to significantly jeopardise the public good.

References Camus A (2008) The Plague, (1947). Penguin Classics Clarke S, Giubilini A, Walker MJ (2017) Conscientious objection to vaccination. Bioethics 31(3): 155–161 Hickman T, Dixon E, Jones R (2020) Coronavirus and Civil Liberties in the UK. Blackstone Chambers COVID-19: Legal Insights, 6 April 2020, Available at https://coronavirus. blackstonechambers.com/coronavirus-and-civil-liberties-uk/ Raz J (1988) The morality of freedom. Oxford University Press:380–381 Savulescu J (2021) Good reasons to vaccinate: mandatory or payment for risk? J Med Ethics 47(2):1

7

See, further, Clarke et al. (2017), pp. 155–161, at: https://onlinelibrary.wiley.com/doi/ full/10.1111/bioe.12326.

Index

A A, B and C v. Ireland, (Irl), 21, 28, 68, 79, 94, 177, 197, 515 Abortion Australia, and, 378, 380, 381, 403–405, 493, 495, 504, 506 Canada, and, 322–323, 328, 344–347, 351, 353, 493, 495, 503 England and Wales, and, 123, 128, 131, 140–142, 152, 156, 493, 495, 503, 506, 508 Ireland, and, 21, 94, 131, 141, 176–179, 182–184, 186, 194, 197–202, 492, 493, 495, 506 New Zealand, and, 429, 430, 438–439, 445, 457–462, 475, 479, 480, 492, 493, 495, 503, 504, 508 prohibition, of, 30, 177, 285, 492 U.S., and, 238, 239, 243–246, 249, 254, 273–275, 285, 299 Abortion Act 1967 (E&W), 123, 131, 141, 493, 495 Abortion Legislation Act 2020, (NZ), 445, 457–460, 493, 495, 503, 504, 508 AB v. Western Australia, (Aus), 394 Adar v. Smith, (E&W), Adelaide Company of Jehovah’s Witnesses Inc. v. Commonwealth, (Aus), 398, 399 Adenitire, J., 4, 8, 252 Adhar, R.T., 434 Adler v. Ontario, (Can), 314, 317, 354, 510 Adoption Action Incorporated v. AttorneyGeneral, (NZ), 438, 465

Adoption and foster care Australia, and, 409–410 Canada, and, 350–351, 508 England & Wales, and, 148–149, 508 Ireland, and, 179, 208, 508 New Zealand, and, 442, 465–466 U.S., and, 282–284, 350, 508 Affirmative action Australia, and, 401–402, 414, 418 Canada, and, 271, 342, 358, 359 England & Wales, and, 139, 157–158 Ireland, and, 195–196, 218–219 New Zealand, and, 456, 471 U.S., and, 157, 271, 292–293, 513 Affordable Care Act, (U.S.), 245, 248, 250, 254, 266, 272, 276, 277, 300, 504 Ageyevy v. Russia, (ECtHR), Agostini v. Felton, (U.S.), 236 A.H. and Others v. Russia, (ECtHR), Ahdar, R., 434, 521 Ahmad McIntosh v. TAFE Tasmania, (Aus), 424, 517 Ahmad v. Inner London Education Authority, (E&W), 162, 516 Airedale NHS Trust v. Bland, (E&W), 125 Alberta v. Hutterian Brethren of Wilson Colony, (Can), 313, 341, 544 ALRM v. State of South Australia, (Aus), 375, 377, 401 Altitude Express, Inc. v. Zarda, (U.S.), 261, 301, 517 Amaltal Fishing Co Ltd.v. Nelson Polytechnic (No.2), (NZ), 456

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 K. O’Halloran, Conscientious Objection, Ius Gentium: Comparative Perspectives on Law and Justice 98, https://doi.org/10.1007/978-3-030-97648-4

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554 American Indian/Alaska Native (AI/AN), 235, 236, 239 American Legion v. American Humanist Ass'n et al, (U.S.), 269 AM v. Refugee Appeals Tribunal, (Irl), 176, 220 Andrews v. Law Society of British Columbia, (Can), 343 An Garda Síochána v. Oberoi, (Irl), 195 Angelini v. Sweden, (ECtHR), 99 Anti-vax, 33, 122, 140, 175, 551 A obo V and A v. NSW Department of School Education, (Aus), 414, 511 Application by SJD & TYW, (NZ), 438 Arlene’s Flowers Inc v. Washington, (U.S.), 260 Arora v. Melton Christian College, (Aus), 413, 511 Arrowsmith v. the United Kingdom, (E&W), 158 Assange, J., 136, 264 Assisted reproduction technology Australia, and, Canada, and, England & Wales, and, Ireland, and, 29–30 New Zealand, and, U.S., and, 29–30 Asylum seekers Australia, and, 419–421 Canada, and, 307, 360–362 England and Wales, and, 159–160 Ireland, and, 219–221 New Zealand, and, 472–474 U.S., and, 295–296 A Teacher v. A National School, (Irl), 225, 517 Athabasca Tribal Council v. Amoco Canada Petroleum Co., (Can), 342 Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equality Commission, (Aus), 383 Attorney-General (vic) (Ex rel Black) v. Commonwealth, (Aus), 376, 416, 510 Attorney General v. X, (Irl), 177 Australian Medical Association, 403, 404, 407 Australian Relinquishing Mothers Society (ARMS), 381 Autonomy, xi, ix, 4, 13, 41, 44, 55, 56, 88, 90, 91, 159, 252, 304, 343, 347, 349, 390, 438, 446, 501, 523, 539 Avis Rent A Car Ltd v. Proceedings Commissioner, (NZ), 456

Index Azmi v. Kirkless Metropolitan Borough Council, (E&W), 139, 153

B Barber v. Bryant, (U.S.), 237, 250, 285 Baxter, A., 437 Bayatyan v. Armenia, (ECtHR), 78, 90 Begum v. Barley Lane Montessori Day Nursery, (E&W), 139, 154 Beliefs Australia, and, 371–376 Canada, and, 308–312 Christian, viii, 2, 25, 135, 173, 237, 278, 293, 304, 316, 439, 491, 520, 521 England & Wales, and, 47, 114–115 Ireland, and, 170–172 New Zealand, and, 430–433 non-Christian, 212 sincerity, of, 16, 80, 164, 226, 302, 365, 424, 478 U.S., and, 232 Beliefs of Indigenous people Australia, and, 375 Canada, and, 312 New Zealand, and, 433 U.S., and, 501 Biden Administration, the, 245, 506 Bill 21, (Can), 315, 328, 335, 340, 351, 354, 355, 496, 501, 508, 530 Bill C-16, (Can), 324, 327, 335, 366–368 Biosecurity Act 2015, (Aus), 386, 507, 550 Black and Morgan v. Wilkinson, (E&W), 165 Black Lives Matter, ix, viii, 33, 46 Blasphemy and Proselytism Australia, and, 395 Canada, and, 354 England & Wales, and, 135 Ireland, and, 135, 191 New Zealand, and, 451 U.S., and, 498 Bleakley v. Environmental Risk Management Authority, (NZ), 433, 440, 456, 544 Boisson v. Lund, (Can), 334 Bona fide occupational requirements (BFOR) rule of, 363 Borrowdale v. Director-General of Health, (NZ), 463, 507 Bostock v. Clayton County, (U.S.), 261, 301 Bowers v. Hardwick, (U.S.), 246 Bowman v. Secular Society Ltd, (E&W), 39 Boy Scouts of America v. Dale, (U.S.), 194, 266

Index Bray v. Alexandria Women's Health Clinic, (U.S.), 275 Brennan v. Noel Tuite t/a Beulah Print, (Irl), 227 BREXIT, 128, 497, 531, 534 Brillinger v. Brockie (No. 3), (Can), 367 British Empire, 36, 37, 42, 492 Brownfield v. Daniel Freeman Marina Hospital, (U.S.), 275 Brownlee, K., xiii, 16, 45, 46, 308 Brown v. Board of Education, (U.S.), 286 Brown v. Pena, (U.S.), 234, 235 Bruker v. Marcovitz, (Can), 326 Bull v. Hall and Preddy, (E&W), 165, 518 Burke v. Tralaggan, (Aus), 425, 518 Burqa, vii, viii, 153, 455, 500, 525 Burwell v. Hobby Lobby Stores, Inc., (U.S.), 17, 120, 166, 236, 258, 266, 277, 300, 486, 490, 500, 518 Buscarini and Others v. San Marino, (ECtHR), 83, 89 Butler v. Smith County Board of Education, (U.S.), 289 B. (R.) v. Children’s Aid Society of Metropolitan Toronto, (Can), 326, 351

C Caldwell v. St. Thomas Aquinas High School, (Can), 363 California v. Texas, (U.S.), 272, 538 Campaign Against Moral Persecution (CAMP), 382 Campaign to Separate Church and State, (Irl), 173, 212, 216, 217, 510 Camus, A., 547 Canada Summer Jobs program, 351 Canada Trust Co. v. Ontario Human Rights Commission, (Can), 358, 362 Canadian Human Rights Act 1985, (Can), 332, 362 Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder, (Can), 340, 365, 517 Cancer Voices Australia v. Myriad Genetics Inc, (Aus), 383 CANZUS nations, the, 5, 51, 71, 246, 262, 468, 494, 501, 511, 549 Capital punishment, 38, 243, 280 Carter v. Canada, (Can), 325, 343, 347 Catch the Fire Ministries Inc v. Islamic Council of Victoria Inc, (Aus), 395, 399

555 Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales, (E&W), 148, 508, 521 Catholic Charities, 275, 283, 490 Catholic Church, 87, 114, 123, 148, 169, 178, 181, 184, 203, 209–211, 241, 322, 368, 378, 381, 382, 384, 438, 439, 441, 493 Catholic Social Services, 283, 350, 439 C.D. and N.D., (Can), 350, 508 CEDAW, see UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) Central Alberta Dairy Pool v. Alberta (Human Rights Comm.), (Can), 365, 517 Central Okanagan School Dist. No. 23 v. Renaud, (Can), 364, 517 Centrepoint Community Growth Trust v. Commissioner of Inland Revenue, (NZ), 431 Chamberlain v. Surrey School District No. 36, (Can), 313, 339, 356, 510 Chaplaincy services, 412 Chaplin v. Royal Devon & Exeter Hospital NHS Foundation Trust, (E&W), 135, 138 Charter of Rights and Freedoms, the, (Can) s.1, of, 330 s.2(a), of, 310, 311, 313, 314, 317, 338, 342, 344, 353, 359, 360, 368 s.2(b), of, 334 s.7, of, 322, 349, 351 s.15, of, 339, 342, 343, 352 s.25, of, 312, 341 s.27, of, 325, 330 Christchurch mosque massacre, 442 Christian Family Schools Association of Australia v. Public Transport Corporation, (Aus), 416 Christianity cultural heritage of, 32, 33, 37, 100, 119– 120, 172–173, 237–239, 308, 316– 319, 376–378, 403, 434–435, 488, 509, 519, 522–526 preferencing of, 119–120, 172–173, 237– 239, 316–319, 376–378, 434–435, 529, 530 Christian Legal Soc. Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, (U.S.), 260, 267 Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, (Can), 345

556 Christine Goodwin v. United Kingdom, (ECtHR), 143 Church of England, 114, 119, 156, 433 Church of Scientology Inc v. Woodward, (Aus), 397 Church of the Lukumi Babalu Aye v. City of Hialeah, (U.S.), 269, 271 Church of the New Faith v. Commissioner of Pay-roll Tax, (Aus), 372, 486 Church/State relationship, 332, 484, 489 Cicero, 50, 548 Ciciulla v. Curwen-Walker, (Aus), 422, 516 Citizenship Australia, and, 380–381 Canada, and, 320–322 contemporary, 533–535 England & Wales, and, 122–123 Ireland, and, 176 New Zealand, and, 437 traditional, U.S., and, 243 Civic duties, 11, 25, 51, 122, 126, 241, 436, 490–492 Civil Contingencies Act 2004 (E&W), 127, 550 Civil disobedience, viii, 16, 36, 44–46, 48, 60 Civil Partnership Act 2004 (E&W), 187 Civil Rights Act 1964: Title VII, (U.S.), 252, 256, 259, 272, 282, 291, 303 Civil society, 36, 48–54, 59, 237, 315, 360, 491, 523 Cobaw Community Health Services Limited v. Christian Youth Camps Limited & Anor, (Aus), 373, 379, 399, 425 Common law England & Wales, and, 119, 134, 135 jurisdictions of, x, 6, 7, 16, 36–41, 86, 119, 280, 332, 471 tradition of, Compelling interest test of, 269, 270, 487, 501, 543 Congreìgation des teìmoins de Jeìhovah de St-Jeìrôme-Lafontaine v. Lafontaine (Village), (Can), 313, 315, 337, 367, 488 Connolly v. Governor of Wheatfield Prison, (Irl), 220 Conscience legal recognition of Australia, and, 394, 423 Canada, and, 491 England & Wales, and, 31, 174 Ireland, and, 174, 491 New Zealand, and, 437

Index U.S., and, 31 Conscience and Religious Freedom Division (U.S.), 237, 244, 284 Conscience Protection Act of 2019 (U.S.), 254, 275, 304 Conscientiousness, ix, vii, 3–33, 88, 227, 373, 478, 487, 498, 522 Conscientious objection equality, and, ix–xi, 91–109, 113, 140–166, 196–228, 271–304, 343–368, 402– 426, 457–479, 502–519 human rights, and, xi, 45, 53–60, 66, 77–79, 85, 113, 114, 129, 193, 345, 367 principle of, xi, 65, 77–84, 111, 133, 430 private interests, and, 535–537, 539 public interests, and, 535–537, 539 Conscientious Objection (Medical Activities) Bill 2017–19 (E&W), 152, 502, 508 Conscientious objector compensation obligation, of, 541–542 complicity, and, 41, 141, 202, 404, 541 referral responsibilities, of, 145, 344, 345, 348, 458, 505–507 Constitution (Can) conscience, and, 175, 369 Constitution (Irl) Amendments, to, 175 Article 40, of, 193, 204 Article 42A, of, 198 Article 44, of, 76 Conscience, and, 185 Preamble, to, Constitution (U.S.) 1st Amendment, 260 8th Amendment, 199 10th Amendment, 281 14th Amendment, 260 Constitution Act, (Aus) s.116, of, 392–394 Constitution Act, (Can) s.35, of, 312 Contraception, 24, 30, 123, 140–142, 176, 192, 197, 200, 243, 245, 266, 273, 275– 277, 322–325, 344–346, 381, 403– 405, 438, 445, 457, 459, 460, 475– 480, 502–505 Conversion therapy Australia, and, 377 Canada, and, 346 England & Wales, and, Ireland, and, New Zealand, and, 447 U.S., and, 447

Index Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, (U.S.), 239, 516 Corporate entities, 16, 17, 137, 194, 266–267, 337–338, 398, 454, 491, 499, 500 Corway v. Independent Newspapers (Ireland) Ltd, (Irl), 488 Council of Europe, 67, 72–73, 219 Covid-19 Australia, and, 386 Canada, and, 327 citizen/state, and, 548–550 England & Wales, and, 127, 147, 152 general, viii, 463, 499, 506, 513 Ireland, and, 183–184, 207 New Zealand, and, 443, 463 U.S., and, 251–252, 282 Covid-19 pandemic constraints Australia, and, 386 Canada, and, 327 England & Wales, and, 127, 147, 152 Ireland, and, 183–184, 207 New Zealand, and, 443, 463 U.S., and, 251–252, 282 Cranmer, F., 138, 152 Creutzfeldt-Jakob disease, 125 Cultural heritage Australia, and, 376–378, 381, 403 Canada, and, 308, 316–318 England & Wales, and, 119–120 Ireland, and, 172–173 New Zealand, and, 434–435 U.S., and, 237–239 Cultural identity, x, 37, 52, 53, 60, 133, 173, 235, 262, 451, 510, 526, 534 Culture cancelling, of, 260, 512, 527–528 wars, the, ix, 1, 6, 28, 36, 42–44, 60, 238– 239, 243, 247, 250, 259, 265, 273, 488, 489, 497, 524, 525, 538 Customary adoption, 385 C. v. A. (Can), 345 C. v. the United Kingdom, (ECtHR), 83, 106 CV v. Mount Sinai Hospital, (Can), 345

D Dal Pont, G., 399 Declarations in Lieu of Oaths Bill 1855, (NZ), 36 Decriminalisation abortion, of, 28, 381, 445 homosexuality, of, 323, 382

557 Deen v. Lamb, (Aus), 398 Defense of Marriage Act (DOMA), (U.S.), 247 Democratic society Australia, and, 386, 409 Canada, and, 310, 311, 330, 334 dissent, in, England & Wales, and, 115, 116, 118, 126, 136, 138, 152 general, Ireland, and, 179, 189, 210 New Zealand, and, 442, 446, 450, 454, 460, 464 U.S., and, 268, 284 Department of Labour v. Books and Toys (Wanaka) Ltd, (NZ), 479 D.H. v. Czech Republic, (ECtHR), 91, 101 Diamond v. Chakrabarty, (U.S.), 248 Dichmont v. Newfoundland and Labrador, (Can), 352 Dillane v. Ireland, (Irl), 186 Dima Yakovlev law, the, Discrimination Australia, and, 382, 388–390, 392, 394, 399, 401, 402, 411, 413, 419, 420, 425 Canada, and, 313, 314, 317, 324, 327, 330– 334, 341, 345, 353, 364, 367, 368, 354361 England & Wales, and, 120, 129, 141, 143, 145, 148–151, 153, 156, 157, 161– 165 Indigenous people, and, 415, 435 Ireland, and, 179, 180, 183, 186, 187, 190, 194–197, 212, 217, 218, 221, 223, 224, 226–228 New Zealand, and, 435, 436, 443, 445, 446, 448, 456, 457, 465, 466, 468, 470, 471, 474, 475 U.S., and, 235, 238, 240, 244, 250, 251, 254–256, 261, 263, 272, 275, 283– 286, 289, 293, 297, 301, 303 Dissent reform, and, 530–532 Diversity, ix, 8, 36, 42, 51–54, 133, 210, 259, 307, 308, 314, 356, 373, 415, 430, 448, 467, 509, 523–524, 530, 533, 548 Dodge v. Salvation Army, (U.S.), 284, 298, 516 Dogru v. France, (ECtHR), 101 Doogan & Anor v. NHS Greater Glasgow & Clyde Health Board, (E&W), 126, 141, 544 Doré v. Barreau du Québec, (Can), 330

558 Doyle v. Whitehead, (NZ), 434, 488 Dr David Mackereth v. The Department for Work and Pensions & Anor, (E&W), 143, 164 Dudgeon v. United Kingdom, (ECtHR), 29, 134, 179, 198, 466, 497 Due process, 85, 243, 246, 247, 253, 279, 289, 294 Dying with Dignity Bill, (Irl), 181, 184, 188, 205, 495

E Eadie and Thomas v. Riverbend Bed and Breakfast and others (No 2), (Can), 367, 518 Education and affirmative action Australia, and, Canada, and, 271 England & Wales, and, Ireland, and, New Zealand, and, U.S., and, 157, 271, 513 Education and curriculum content Australia, and, 510 Canada, and, 291, 510 England & Wales, and, 510 Ireland, and, New Zealand, and, 470 U.S., and, 510 EEOC v. Abercrombie & Fitch Stores Inc, (U.S.), 256, 270 Egan v. Canada, (Can), 324 Eldridge v. British Columbia (AttorneyGeneral), (Can), 343, 358 Elzahed v. State of New South Wales, (Aus), 400 Employment and religious organisations Australia, and, 422, 515 Canada, and, 364 England & Wales, and, 508 Ireland, and, 515 New Zealand, and, 475, 515 U.S., and, 515 Employment and secular issues Australia, and, Canada, and, England & Wales, and, Ireland, and, New Zealand, and, U.S., and, Employment and SOGI related issues Australia, and, 423

Index Canada, and, 327, 364, 517 England & Wales, and, Ireland, and, 215, 517 New Zealand, and, U.S., and, 477, 517 Employment and undue hardship Australia, and, 518 Canada, and, 364, 518 England & Wales, and, 518 Ireland, and, 518 New Zealand, and, 518 U.S., and, 518 Employment and workplace issues Australia, and, 518 Canada, and, 362, 506, 518 England & Wales, and, 133, 518 Ireland, and, 133, 192, 502, 518 New Zealand, and, 518 U.S., and, 506, 518 Employment Division v. Smith, (U.S.), 240, 249, 284, 540 Employment Equality Acts 1998–2015 (Irl), 173, 187, 195, 196, 208, 221, 489 Employment Non-Discrimination Act (ENDA), U.S.), 249, 256 End of Life Choice Act 2019, (NZ), 445, 461, 462, 495 Equality Act 2010 (E&W), 116, 118, 120, 126, 129, 130, 133, 137, 139–141, 143, 155, 156, 158, 160, 161, 165, 489 Equality Act 2019, (U.S.), 256 Equality/non-discrimination general, 69 legislation, x, 32, 36, 54, 65, 66, 76, 107, 148, 185, 298, 384, 402, 435, 489, 499, 507, 515, 535 Equality/religion interface, 522, 530 Equal Status Acts 2000–2018 (Irl), 173, 187, 226, 489 Equity, 52, 122, 272, 331 Esau, A.J., 14, 284, 304, 537 Ethics, ix, 1, 3, 4, 9–10, 99, 345, 347, 348 ETK v. Refugee Appeals Tribunal, (Irl), 221 European Convention for the Protection of Human Rights and Fundamental Freedoms ‘margin of appreciation,’ and, 73, 86, 94, 132, 189, 543 ‘proportionality’ principle, of, 132, 530, 542, 543 European Convention on Human Rights (ECHR)

Index Article 2 of Protocol No.1., 67, 90, 93, 98, 100 Article 8, 92, 124, 146, 159, 179 Article 9, 78, 81, 85, 88, 90, 97, 108, 114, 118, 119, 137, 166, 500 Article 9(2), 86, 91, 138 Article 12, 253 European Court of Human Rights (ECtHR), 12, 28, 41, 67, 68, 72–75, 78–81, 83– 109, 115, 117, 124, 128, 132, 136, 138, 140, 143, 148, 150, 162–165, 179, 188, 189, 191, 197, 204, 221, 228, 317, 466, 493, 502, 515, 530, 539, 542, 485487 European Court of Justice (ECJ), 73, 96, 102, 128, 132, 149, 161, 188, 189 Everson v. Board of Education, (U.S.), 236, 488, 489 Eweida and Others v. the United Kingdom, (ECtHR), 73, 78, 83, 90, 102, 107, 109, 165 Exemptions citizenship, and, 27, 243, 437, 490, 491, 534, 541, 550 civic duties, from, 11, 25, 126, 241, 320, 436, 486, 490–492, 541 privileges, 3, 17, 54, 58, 59, 167, 222, 235, 241, 243, 368, 378, 379, 405, 408, 412, 415, 422, 426, 435, 437, 457, 467, 490, 492, 499, 502, 515, 521, 523, 524, 536, 537, 541, 549 tax, from, 8, 11, 17, 59, 167, 235, 316, 408, 490, 515, 529, 536, 541 Ex parte Thompson, (Aus), 380 Extinction Rebellion, ix, viii, 46

F Face masks, vii, 24, 349, 549 Faith schools Australia, and, 416, 512 Canada, and, England & Wales, and, 156 general, 59, 156, 512 Ireland, and, New Zealand, and, U.S., and, Family 21st century, and, 170, 535 Family law, 37, 39–40, 382, 522 Family life gay/lesbian rights to,

559 Islam, and, nature of, 7 preservation of, privacy of, 246 right to, 41, 57, 146, 198, 246 U.N. definition of, Farina v. Board of Educ of City of New York, (U.S.), 281 Fellowship of Humanity v. County of Alameda, (U.S.), 234 Fernández Martínez v. Spain, (ECtHR), 90 First Nations, 307, 312, 316, 318, 323, 335, 341 Fisher v. University of Texas, (U.S.), 292 Fitzpatrick & Anor v. K. & Anor, (Irl), 230 Fleming v. Ireland & ors, (Irl), 204 Fluoride, 182, 441 Flynn v. Power, (Irl), 214, 516 Folgerø and others v. Norway, (ECtHR), 98– 100 Forstater v. CGD Europe & Ors (Religion or Belief Discrimination), (E&W), 118, 151, 157 Fox v. Canberra Television Pty Ltd, (Aus), 424, 517 Foy v. An t-Ard Chlaìraitheoir, (Irl), 180, 188, 198, 212 Framework Equality Directive 2000/78/EC, 129 Francesco Sessa v. Italy, (ECtHR), 102, 108 Francis v. YWCA Australia, (Aus), 398 Fraser v. Walker, (Aus), 405 Freedom of Association/Assembly Australia, and, Canada, and, England & Wales, and, Indigenous people, and, 501 Ireland, and, New Zealand, and, 453 U.S., and, 499 Freedom of belief/conscience Australia, and, Canada, and, England & Wales, and, Indigenous people, and, Ireland, and, New Zealand, and, U.S., and, Freedom of expression Australia, and, 393 Canada, and, 334 England & Wales, and, 496 Ireland, and, 191

560 Freedom of expression (cont.) New Zealand, and, 449, 496 U.S., and, 231, 259, 496 Freedom of religion Australia, and, 379, 389, 391, 392, 399, 500, 501 Canada, and, 358, 501 England & Wales, and, 500 Indigenous people, and, 501 Ireland, and, 501 New Zealand, and, 501 U.S., and, 267, 500 Friesen v. Fisher Bay Seafood, (Can), 336, 366

G Gay and Lesbian Clergy Anti-Discrimination Society Inc v. Bishop of Auckland, (NZ), 431, 436, 486 Gaynor v. Chief of Defence Force (No 3), (Aus), 395, 419 Gender Dysphoria, 406 Gender recognition certificate, 125, 130, 159, 186, 191, 497, 504 General Comment 22, 75, 77, 105, 387 GF v. Minister of COVID-19 Response, (NZ), 507 Ghai, R (on the application of) v. Newcastle City Council & Ors, (E&W), 116, 117 Gillette v. United States, (U.S.), 8, 242, 294 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, (U.S.), 234, 268, 269, 271 Gonzales v. Oregon, (U.S.), 41, 279 Goods and services Australia, and, 425 Canada, and, 366, 367 England & Wales, and, Ireland, and, 227 New Zealand, and, U.S., and, 165, 227, 303, 367, 490, 519 Gopnik, A., 532 Grace Bible Church v. Reedman, (Aus), 388 Graham v. Florida, (U.S.), 543 Grainger plc v. Nicholson, (E&W), 5, 143 Greally v. Minister for Education (No 2), (Irl), 174, 223, 510 Griffin v. Catholic Education Office, (Aus), 422, 516 Griswold v. Connecticut, (U.S.), 245, 246 Grutter v. Bollinger, (U.S.), 293 G v. Australia, (UN HRC), 383, 394

Index H Haas v. Switzerland, (ECtHR), 29, 97, 109, 204 Habermas, J., 14, 232 Halal, vii, 19, 419, 420 Halligan and Anor v. Medical Council of NZ, (NZ), 458 Hall v. Durham Catholic School Board, (Can), 356 Halpern v. Canada (Attorney General), (Can), 324 Handyside v. United Kingdom, (ECtHR), 85 Hanover Welfare Services Ltd (AntiDiscrimination Exemption), (Aus), 383, 423 Harvard College v. Canada (Commissioner of Patents), (Can), 325 Hearn and United States v. Muskogee Public School District, (U.S.), 288, 511 Heintz v. Christian Horizons, (Can), 364 Hemmingston v. Swan t/a Barker’s Groom Room, (NZ), 477, 478 Hender & Sheridan v. Prospects for People with Learning Disabilities, (E&W), 161, 516 Herd immunity, 21, 147, 520, 552 Hickman, T., 127, 549 Highwood Congregation v. Wall, (Can), 368 Hippocratic Oath, 202 Holt v. Hobbs, (U.S.), 295 Home schooling, 100–101, 152, 210, 509 Homosexuality, x, vii, 27–30, 38, 108, 124, 135, 148, 157, 179, 183, 198, 221, 238, 256, 298, 299, 323, 335, 356, 373, 382, 393, 469, 473 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (U.S), 236, 298, 486 Hospice New Zealand v. A-G, (NZ), 454, 462 Hoxton Park Residents Action Group Inc v. Liverpool City Council, (Aus), 376 Hubble v. Brooks, (E&W), 162 Human Rights gay couples, and, identity and cultural affiliation, Human Rights Act 1993 (HRA), (NZ), 435, 436, 438, 439, 442, 444, 446, 448, 449, 456, 457, 465, 470, 471, 474– 479, 489 Human Rights Act 1998 (E&W), 114, 129–130, 137, 140, 161 Human Rights Legislation Amendment (Freedom of Religious) Bill 2019, (Aus), 387, 390, 508

Index Human Rights Watch, x, 45, 420 Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, (U.S.), 194, 267

I I and I v. S, Identity culture, and, 51 expressions, of, 497 indigenous people, and, 318, 395 individual, 55 politics, of, vii, 366, 496, 497 Iliafi v. The Church of Jesus Christ of LatterDay Saints Australia, (Aus), 399, 486 Immunisation Australia, and, 375 Canada, and, 346, 349 England & Wales, and, 146 general, Ireland, and, New Zealand, and, U.S., and, 281 Indian Act 1876, (Can) general, 318 Indian Child Welfare Act 1978, ICWA (U.S.), 256 Indigenous people ancestral places of worship, and, 433, 456 Australia, and, 377, 395 beliefs, of, 235–236, 312, 341, 375–376, 400–401, 432–433, 501 Canada, and, 335 New Zealand, and, 443, 450 U.S., and, 239, 262 Indigenous people of Australia Aboriginals Ordinance 1918, 378 Bringing Them Home, report, 410 children and issues, of, 414 ‘stolen generation’ of, 377, 401, 410 Individual, the autonomy, of, 16, 26, 55, 56, 85, 349 privacy, of, 246 rights, of, 50, 77, 246, 263, 279, 407, 440, 505, 535, 540 Institutionalised conscientious objection, 246, 276, 363, 377, 378, 382, 407, 426, 490, 493, 502, 503, 515, 520, 536 Insurrection, 46–48

561 International Convention on the Elimination of Race Discrimination (ICERD), 128, 253, 387, 388, 390, 494 International Conventions general, 189, 443 International Covenant on Civil and Political Rights (ICCPR), x, 12, 65, 67, 69, 74, 75, 77, 78, 81, 89, 98–101, 128, 132, 137, 140, 184, 185, 189, 193, 195, 223, 253, 258, 267, 328, 333, 334, 380, 383, 387–388, 390, 392, 398, 399, 411, 425, 437, 440, 443, 444, 447, 453, 474, 487, 494, 499, 500, 502 Article 19, 334 International Covenant on Economic, Social and Cultural Rights (ICESCR), 69, 92, 98, 128, 253, 329, 387, 390, 411, 443, 494 Intersectional, 531 Irish Human Rights and Equality Commission (IHREC), the, 190, 199, 211 ISIS, 14, 38, 47, 50, 531, 532, 549 Islam blood-lines, and, 433, 460 SOGI, and, 7 IVF, xi, 29, 41, 43, 58, 96, 125, 140–143, 197– 202, 239, 273–278, 344–347, 382, 403–406, 458–461, 495, 502–504, 548 İzzettin Doğan and Others v. Turkey, (ECtHR), 68, 78, 80

J Jedi, viii, 8, 22, 115, 430, 486, 491, 540 Jehovah’s Witnesses v. the Russian Federation, (ECtHR), 92 Joslin et al v. New Zealand, (UN CRC), 440, 466 Judaism, 5–7, 31, 40, 41, 153, 382, 510 Judd v. McKeown, (Aus), 380, 381 Judt, T., 48–50 June Medical Services, LLC v. Russo, (U.S.), 273, 489 J. (M.) v. Nichols, (Can), 352, 508

K Kant, I., x, 35 Kapoor v. Monash University, (Aus), 413, 414 Kay v. South Eastern Sydney Area Health Service, (Aus), 401

562 Kelly v. National University of Ireland, (Irl), 218 Kervanci v. France, (ECtHR), 101 Khan v. Commissioner, Department of Corrective Services, (Aus), 419 Kim v. Minister of Justice, (NZ), 474 King-Ansell v. Police, (NZ), 435 Kisilowsky v. Manitoba, (Can), 352 Kjeldsen and others v. Denmark, (ECtHR), 98 Klaassen v. Trustees of Indiana University, (U.S.), 282 Kokkinakis v. Greece, (ECtHR), 12 Kosteski v. the former Yugoslav Republic of Macedonia, (ECtHR), 108 Kottinenen v. Finland, (ECtHR), 108 Kruger v. Commonwealth, (Aus), 401 Krygger v. Williams, (Aus), 379 Ktunaxa Nation v. British Columbia, (Can), 312, 339, 341

L Ladele v. London Borough of Islington, (E&W), 148, 150, 508, 518 Laïcité, 315, 335 Lautsi v. Italy, (ECtHR), 100 Law, government and vaccination in the Covid19 pandemic Australia, and, 409 Canada, and, 349 England & Wales, and, 147 general, 505 Ireland, and, 207 New Zealand, and, 463 U.S., and, 281–282 Lawrence v. Texas, (U.S.), 247, 251 Law Society of BC v. Trinity Western University, (Can), 314, 319, 330, 338, 339, 359, 513 Laws that Unfairly Burden a Minority Australia, and, 385 Canada, and, 326 England & Wales, and, 126 general, 83 Ireland, and, 182–183 New Zealand, and, 442 U.S., and, 249–251 Laycock, D., 232, 271, 292 Lee v. Ashers Baking Company Ltd, and Others, (E&W), 134, 165 Legitimacy and Cogency of Beliefs Australia, and, 375 Canada, and, 311–312

Index England & Wales, and, 116–119 Ireland, and, 171–172 New Zealand, and, 432 U.S., and, 234 Lesbian witches, viii, 8, 11, 491 Leyla Şahin v. Turkey, (ECtHR), 82, 83, 101, 487 LGBT, x, ix, 4, 27, 29–31, 38, 39, 46, 87, 114, 135, 146, 151, 157, 194, 202, 205, 208, 216, 218, 221, 237, 239, 250, 267, 268, 272, 283, 292, 293, 296, 358–360, 362, 408, 417–418, 463, 471, 472, 497, 513, 525, 531, 535, 536 Liberty Trust v. Charities Commission, (NZ), 475, 486 Lineage general, Islam, and, Lithgow v. United Kingdom, (ECtHR), 74, 85, 132, 189 Little Sisters Of The Poor Jeanne Jurgen Residence v. California et al, (U.S.), 277 Love v. Commonwealth; Thoms v. Commonwealth, (Aus), 395 Loyola High School v. Québec (Attorney General), (Can), 330, 338, 340, 355, 357, 367, 368, 510

M Mabon v. Conference of the Church of New Zealand, (NZ), 434, 488 Mabo v. Queensland (No 2), (Aus), 395 Mackeral v. Monaghan County Council, (Irl), 214 Magdalene laundries, the, 178 Mahuta v. Waikato Regional Council, (NZ), 432, 456 Mair v. Wanganui District Court, (NZ), 434, 451 Malnak v. Yogi, (U.S.), 234 Mandla (Sewa Singh) and another v. Dowell Lee and others, (E&W), 154 Manifesting beliefs Australia, and, 399–400 Canada, and, 339–341 England & Wales, and, 138–139 Indigenous people, and, 235–236, 262, 312, 341, 375–376, 401, 432–433, 487– 488, 501 Ireland, and, 195

Index New Zealand, and, 454–455 U.S., and, 269–270 Mansur Yalçιn & Ors v. Turkey, (ECtHR), 100 Māori blood-ties, and, culture of, 429, 433, 435, 442, 444, 450, 451, 467 general, 435 Waitangi, Treaty of, 429, 433, 444, 449 Marett v. Petroleum Refineries (Australia) Pty Ltd, (Aus), 423 Marriage (Same Sex Couples) Act 2013 (E&W), 31, 124, 129, 218, 285, 493, 508, 536, 542 Marriage registrars, 24, 149–150, 209, 285, 351–353, 411, 466, 508, 542 Mason v. Mason, (E&W), Masterpiece Cakeshop v. Colorado Civil Rights Commission, (U.S.), 237, 260, 518 Mater semper certa est, 96, 202 Maurice v. Canada (Attorney General), (Can), 310, 361, 485 McAteer v. Canada (Attorney General), (Can), 321, 339 McClintock v. Department of Constitutional Affairs, (E&W), 115, 151, 164, 310, 518 McFarlane v. Relate Avon Ltd, (E&W), 117, 119, 148, 150, 164, 399, 488 McGee v. Attorney General, (Irl), 177, 221 McGrath and Ó Ruairc v. Trustees of Maynooth College, (Irl), 217, 488 McKeever v. Board of Management Knocktemple National School and the Department of Education, (Irl), 213 Medical Advancement: Contiguous Policy Development Australia, and, 383–384 Canada, and, 324–325 England & Wales, and, 125 general, 490 Ireland, and, 180–181 New Zealand, and, 440–441 U.S., and, 248–249 Medical Assistance in Dying (MAiD), 345, 348 Medically assisted death Australia, and, 407–408 Canada, and, 347–348 England & Wales, and, 145 general, vii, viii, 7, 29, 30, 41, 109, 492– 495, 504, 505, 508, 524, 527 Ireland, and, 204–205

563 New Zealand, and, 462–463 U.S., and, 279–280 Menneson v. France, (ECtHR), 96 Menzies & Ors v. Owen, (Aus), 393 Merriman v. St. James' Hospital, (Irl), 226 Meulenbroek v. Vision Antenna Systems Ltd, (NZ), 476, 516–518 Migrant crisis, 497, 531, 532 Military service Australia, and, 418–419 Canada, and, 360 England & Wales, and, 158 exemption from, 25–26, 106, 319, 379 Ireland, and, 219 New Zealand, and, 430, 440, 472 U.S., and, 294 Mill, J.S., 23, 24 Ministerial exception, 240–241, 298, 489 Minorities rights, of, 36, 446, 459 Mississippi HB 1523, 268, 522, 538 Mitchell v. Helms, (U.S.), 236 Monsanto v. Schmeiser, (Can), 325 Moon, R., 309, 315, 316, 332, 354, 365 Moore v. British Columbia (Ministry of Social Services, (Can), 344, 353, 521 Morality coherence, of, 11 imperatives, of, 17, 30, 36–38, 40, 42–45, 60, 239, 250 Mornington Baptist Church Community Caring Inc, (Aus), 379, 422, 516 Mouvement laique quebecois v. Saguenay (City), (Can), 308, 311, 313, 315– 317, 367, 488 M.R. and D.R. & others-v-An t-Ard-Chlaraitheoir & others, (Irl), 201, 202 M.R. v. T.R. (Irl), 201 Mulloy v. Minister for Education, (Irl), 224 Multani v. Commission scolaire MargueriteBourgeoys, (Can), 340, 355 Multiculturalism Act, (Can), 308, 316, 325, 331, 332 M.v. An Bord Uchtalla, (Irl), 178 M v. H and Others, (E&W), 147

N Nabozny v. Podlesny, (U.S.), 289 Nakarawa v. AFFCO New Zealand Ltd, (NZ), 476, 516, 517 National Health Service (NHS), 122, 131

564 National security, 68, 136–137, 192, 264, 337, 385, 397, 426, 453, 498, 499, 513 Nation state, 50, 51, 531 Neuman, G., xiv, 288, 539 Nevin v. Benefits Review Committee (NZ), 466 New Zealand Bill of Rights Act 1990 (NZBORA) s.5, 446 s.8, 461 s.13, 437, 454, 457 s.14, 449, 457 s.19(2), 446, 456, 465, 467, 468, 471, 476 New Zealand Health Professionals' Alliance v. Attorney-General, (NZ), 459 New Zealand Law Commission, New Zealand Māori Council v. Attorney General (NZ), 433, 444 New Zealand Police v. Gary Thomas Chiles and Adrian James Leason (NZ), 453 Ngawha Geothermal Resource Company Ltd v. Northland Regional Council, (NZ), 456 NIFLA v. Becerra (U.S.), 245, 260, 275 Noah v. Sarah Desrosiers (trading as Wedge), (E&W), 139, 163, 518 Noble et al. v. Alley (Can), 366 No Jab No Pay, 408, 409, 426 No Jab No Play, 409, 426 No-platforming, 137, 260, 512 Norris v. Ireland (ECtHR), 29, 124, 179 North Western Health Board v. W. (H.), (Irl), 206 Nürnberg, x, 8, 9, 16

O Oaths Hippocratic, 202 swearing of, 26, 122, 241, 319, 320, 411, 490, 491 Obama Administration, 244, 248, 294 Obergefell v. Hodges (U.S.), 247, 261, 493 Offences Against the Person Act 1861, 123, 177, 179, 492 Oliver Brüstle v. Greenpeace e.V (ECtHR), 96 O’Malley v. Simpson Sears (Can), 363, 365, 516, 517 Oncomouse, saga of, 41 Orthodox Judaism, 6, 7, 510 O’Shiel v. Minister for Education (Irl), 211, 223 Osmanoglu et Kocabas v. Switzerland (ECtHR), 98

Index Our Lady of Guadalupe School v. MorrisseyBerru, (U.S.), 516 OV and OW (Aus), 372, 373, 379, 410, 508

P Pandemic, 21, 23, 50, 58, 90, 92, 93, 105, 125, 127–128, 147, 182–184, 198, 207, 251, 280–282, 327, 349–350, 386, 408, 409, 426, 441, 443, 463, 464, 492, 499, 505–507, 513, 520, 531, 533, 537, 547, 549–552 Personal identity issues Australia and, 394 Canada and, 335 England & Wales and, 134 Ireland and, 191 New Zealand and, 450 U.S. and, 261 Pichon and Sajous v. France (ECtHR), 73, 78, 82, 108 Pierce v. Society of Sisters (U.S.), 246, 291 Planned Parenthood of Southeastern Pa. v. Casey (U.S.), 260 Pluralism Australia and, 496, 503 Canada and, 316 England & Wales and, 133 Ireland and, 170 New Zealand and, 430 U.S. and, 259 Police v. Razamjoo (NZ), 455 Politics direct intervention, 366 influence of, 29 Portmarnock Golf Club case (Irl), 193 Prayers, symbols and religious ceremonies etc Australia and, 414 Canada and, 355–356 England & Wales and, 154 Ireland, and, 214–215 New Zealand and, 468 U.S. and, 289 Pretty v. the United Kingdom (ECtHR), 82, 89 Prisoners Australia and, 419 Canada and, 360–362 England & Wales and, 159–160 Ireland and, 219–221 New Zealand and, 472–474 U.S. and, 295–296 Proportionality fair balance, and, 86, 542, 544

Index principle of, 530 Proselytism, 49, 91, 134–136, 191, 262–263, 287, 295, 336, 354, 395–396, 451, 498, 514 Protection of Life During Pregnancy Act 2013 (Irl), 522 Protestant, 26, 37, 42, 60, 114, 119, 171, 172, 178, 182, 210, 238, 283, 303, 353, 358, 382, 451 Proxies for religious belief, 43–44 Public education Australia and, 412 Canada and, 353–354 England & Wales, and, 152–158 Ireland and, 209–211 New Zealand and, 467–471 U.S. and, 286–293 Public good, the, ix, 60, 123, 198, 263, 293, 552 Public health Australia, and, 402–409 Canada, and, 343–350 England & Wales, and, 140–147 Ireland, and, 197–202 New Zealand, and, 457–464 U.S., and, 272–278 Public officials Australia, and, 411 Canada, and, 351–353 England & Wales, and, 149–152 Ireland, and, 209 New Zealand, and, 466, 467 U.S., and, 285–286 Public/private balance, of, 418, 522, 535–544 Public Servants Disclosure Protection Act (PSDPA), (Can), 336 Public service providers, 91–92, 520 Pussy Church of Modern Witchcraft, 8, 235

Q Quakers, 12, 16, 25, 26, 42, 114, 121, 158, 175, 319, 436, 472 Québec Bill 16, of, 315 Bill 21, of, 315 Québécois, the, 307 Quilter v. Attorney-General, (NZ), 439, 457 Quinn’s Supermarket Ltd v. Attorney General, (Irl), 174 Qur’an, the, 375 Qureshi v. G4S Security Services, (Can), 363, 516

565 R Racial and Religious Hatred Act 2006 (E&W), 130, 454 Racine v. Woods, (Can), 323 Racism systemic, 42 Rawls, J., 18, 44, 45, 47, 51, 483 Re Application by AMM and KJO to adopt a child (NZ), 465 Re Article 26 and the Employment Equality Bill 1996 (Irl), 516 Re Devi, Sangeeta, (NZ), 474 Refah Partisi v. Turkey, (ECtHR), 74, 86, 132 Reference Re. Constitutional Act, 1978, (Can), 352 Re Jones, (Aus), 375 Re Kelvin, (Aus), 406 Re: Kevin and Jennifer v. Attorney-General for the Commonwealth, (Aus), 394 Religion Christianity, 5, 6 democracy, and, 528 evangelism, 6 Islam, 5, 6 Judaism, 6 politics, and, 321 traditional, and, 4, 5, 7–9, 15, 77, 115, 118, 170–171, 232–233, 309–310, 372–375, 431, 484, 485, 529 transcendant, and, 8 Religion Specific Clothing Australia and, 400 Canada, and, 339–341 England & Wales, and, 138–139 Ireland, and, 195 New Zealand, and, 454–455 U.S., and, 270 Religion specific prayers, ceremonies etc Australia, and, 382, 414 Canada, and, 355–356 England & Wales, and, 154 Ireland, and, 214–215 New Zealand, and, 468 U.S., and, 289 Religious Discrimination Bill 2019, (Aus), 386, 390, 403, 409, 411, 426, 502, 508 Religious Discrimination (Consequential Amendments) Bill 2019, (Aus) general, 387 Religious exemption Australia, and, 378–379 Canada, and, 318–319 England & Wales, and, 120–121 general, 173–174

566 Religious exemption (cont.) Ireland, and, 173–174 New Zealand, and, 435–436 U.S., and, 233, 239–240 Religious Freedom Restoration Act (RFRA), (U.S.), 252 Religious Land Use and Institutionalized Persons Act (RLUIPA), (U.S.), 252, 254–255, 269, 295 Religious Liberty Laws, 128, 199, 238, 250–251, 268, 269, 304, 326, 344, 426, 490, 508 Religious organisations charitable status, of, 515–516 general, 59–60 Religious pluralism, 12, 13, 86, 170, 316, 522, 523, 526, 528 Re Pierney and Hsieh, (NZ), 465 Reproductive rights, ix, 27–30, 40, 57, 93, 140, 245, 273, 308, 403, 426, 438, 492, 493, 504, 527, 537 Residential schools Aboriginal people, and, 331, 401 First Nations, Metis and Inuit, and, 307, 318 Ireland, legacy of, 492 Reynolds v. United States, (U.S.), 267, 297, 425, 487 Right to Life New Zealand Inc v. Abortion Supervisory Committee, (NZ), 459 Roberts v. United States Jaycees, (U.S.), 265 Roe v. Wade, (U.S.), 246, 273, 493, 538 Roosevelt, E. Mrs., 32, 58, 60 Ross v. Canada, (Can), 334 R (Watkins-Singh) v. Aberdarle Girls’ High School (E&W), 126 R v. Big M Drug Mart, (Can), 309, 311, 314, 317, 338, 339, 359, 366 R. v. Chan, (Can), 361 R v. Edwards Books and Art Ltd, (Can), 309, 367 R v. Kapp, (Can), 342 R v. Morgentaler, (Can), 322, 338, 493 R. v. Oakes, (Can), 330 R (Williamson) v. Secretary of State for Education and Employment (E&W), 115, 117, 134, 153, 486 R v. Senior, (E&W), 144 R. v. Videoflicks Ltd, (Can), 309, 365 Ryan v. Attorney General, (Irl), 182, 207, 441, 544

S Sacred and the secular, 483 Salazar v. Buono, (U.S.), 270

Index Same sex adoption Australia, and, 381, 385, 409–410 Canada, and, 308, 314, 315, 322–323, 325, 333, 350–351 England & Wales, and, 121, 123, 148–149, 151 general, 31, 37, 49, 56, 59, 71, 73–75, 95, 508, 535 Ireland, and, 176–179, 182, 186, 202, 208, 227 New Zealand, and, 438, 439, 442, 446, 465 U.S., and, 237, 243–246, 253, 282–284, 300 Same sex marriage Australia, and, 382 Canada, and, 318, 330, 352, 353, 369 England & Wales, and, 129, 149 Ireland, and, 180, 209, 218 New Zealand, and, 439, 440 U.S., and, 250, 285 Same sex relationships Australia, and, 381–383, 403, 405, 411, 417 Canada, and, 323–324, 362 England & Wales, and, 123–125, 134, 150, 164 Ireland, and, 179–180, 182 New Zealand, 430, 439–440, 466 Samira Achbita & Anor v. G4S Secure, (E&W), 102 Saskatchewan (Human Rights Commission) v. Whatcott, (Can), 335 S.A.S. v. France, (ECtHR), 80 Satnam Singh v. Shane Singh and Scorpion Liquor, (NZ), 476, 517 SA (Algeria) v. Minister for Justice, (Irl), 221 Schalk and Kopf v. Austria, (ECtHR), 79 School Prayer cases, (U.S.), 238, 289, 414 Schools, Teachers and Parents Australia, and, 412–415 Canada, and, 354–356 England & Wales, and, 152–155 Ireland, and, 211–216 New Zealand, and, 467–469 U.S., and, 287–290 Scruton, R., 14 Secularism, 4, 6, 13–15, 20, 32, 43, 44, 101, 119, 153, 166, 209, 291, 339, 417, 511, 524–526, 529, 530 Sexuality, 19, 37, 42, 43, 179, 216, 247, 350, 368, 415, 425, 470, 474, 512, 538 Sexual orientation and gender identity (SOGI) Australia, and, 403, 406, 415, 416, 421, 423 Canada, and, 323, 325, 327–328, 335, 346–347, 350, 356, 358, 360–362, 364

Index England & Wales, and, 127, 137, 142–143, 149, 159–162, 164 Ireland, and, 201–202, 209, 215–216, 219–221, 224–225 New Zealand, and, 450, 461, 468, 473, 476–477 U.S., and, 247, 249, 261, 278, 289–291, 295–296, 301, 304 Shari’a law, 6, 132 Sharonell Fulton et al. v. City of Philadelphia, (U.S.), 283, 489, 508 Shechita, 455 Sherbert v. Verner, (U.S.), 239, 300, 303, 516, 518, 543 Simpson v. Brockmann, (Aus), 382 Sinnott v. Minister for Education, (Irl), 212 Sisalem v. The Herald & Weekly Times Ltd, (Aus), 393, 398 Slavery, 20, 24, 45, 47, 527 Sleath v. West Midlands Trains Ltd, (E&W), 116, 118 SL v. Commission scolaire des Chênes, (Can), 313 Smith and Chymyshyn v. Knights of Columbus and others, (Can), 368 Social activists, 4, 17, 18, 20, 30, 46, 245, 262, 323, 335, 453, 493, 527, 528, 531 Social capital, 527 Social constructs ethnicity, 525 gender, 525 general, 525 race, 525 Social distancing, 147, 198, 349, 549 Social homogeneity, 7, 529 Social movements, 20, 36, 45–46, 60, 430, 533 SOGI 123, (Can), 328 SOGI related curriculum content Australia, and, 415–416 Canada, and, 356–357 England & Wales, and, 155–156 Ireland, and, 216–217 New Zealand, and, 470 U.S., and, 291 SOGI related health issues Australia, and, 406 Canada, and, 346–347 England & Wales, and, 142–143, 155 Ireland, and, 201–202 New Zealand, and, 461 U.S., and, 278 SOGI related social mores, 514 Solutions NV, (ECtHR), 102

567 Spencer v. World Vision, Inc, (U.S.), 236, 284 State intervention arbitrary, 446 covid-19, and, 464, 520, 548, 550 powers, of, 464 protest against, 53, 104, 453 State neutrality Australia, and, 376–379 Canada, and, 313–319, 353, 354, 367 doctrine of, ix, 119–121, 236, 237, 239, 313, 315, 317, 376–379, 433 England & Wales, and, 119–121 Ireland, and, 172–174 New Zealand, and, 433–436 U.S., and, 236–241, 250 Status Islam, and, 6, 7, 12, 41, 49, 80, 87, 88, 156, 393, 430 Stedman v. the United Kingdom, (ECtHR), 108, 161 Stokes v. Christian Brothers High School, Clonmel & Anor., (Irl), 213 Stonewall, 28, 159 Surrogacy Australia, and, 403, 405 Canada, and, 344, 346 England & Wales, and, 125, 140–142 Ireland, and, 197, 200–202 New Zealand, and, 458, 460–461 U.S., and, 273, 277–278 Syndicat Northcrest v. Amselem, (Can), 309, 311, 314, 340, 365 SZQRM v. Minister for Immigration and Citizenship, (Aus), 421

T Taboo, 38, 238 Taunoa v. Attorney-General, (NZ), 473 Tavoraite v. Dunnes Stores, (Irl), 195, 225 Tenafly Eruv Association v. Borough of Tenafly, (U.S.), 269, 288 TERF, 137 Terrorism, 14, 46–48, 60, 442, 471, 531 Texas statute SB 8, (U.S.), 522, 538 TGP v. TFE, (NZ), 452 Thompson v. Catholic College Wodonga, (Aus), 422, 516 Thompson v. Luke Delaney George Stobbart Ltd, (E&W), 163, 517 Thoreau, H.D., 44, 45, 47 Thunberg, G., 46

568 Tinker v. Des Moines Independent Community School Dist., (U.S.), 265, 288 Tohunga Suppression Act 1907, (NZ), 435 Toonen v. Australia, (UN HRC), 382, 387 Torcaso v. Watkins, (U.S.), 232, 234 Traditional religions Christianity, 5, 6, 14, 39, 115, 309 Islam, 5, 6, 14 Judaism, 5–7 Trans gender, 4, 31–32 Trans World Airlines, Inc. v. Hardison, (U.S.), 302, 364, 517 Trigg, R., 117 Trinity Lutheran v. Corner, (U.S.), 237, 238, 286, 488, 509 Trinity Western University (TWU) v. Law Society of Upper Canada, (Can), 314, 367, 368 Trinity Western University v. Nova Scotia Barristers’ Society, (Can), 316, 319, 488 Trump Administration, 52, 237, 239, 244, 245, 251, 268, 272, 276, 287, 290, 293–295, 304, 426, 490 Tsilhqot'in Nation v. British Columbia, (Can), 341

U Unconscionable, 17, 384, 492, 527, 530 UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), 12, 27, 73, 93, 95, 128, 253, 494 UN Convention on the Rights of Indigenous Peoples (UNDRIP), 71, 329, 494 Article 7, of, UN Convention on the Rights of Persons with Disabilities (CRPD), 128, 494 UN Convention on the Rights of the Child (UN CRC), 70, 98, 175, 253, 267, 387, 390, 392, 402, 411, 438, 466 UN CRC, see UN Convention on the Rights of the Child (UN CRC) U.N. Human Rights Council, 76, 257 United States Supreme Court (USSC) politics, and, 234, 238, 257, 258, 489, 538 United States v. Lee, (U.S.), 240, 297 United States v. Seeger, (U.S.), 9, 232, 234, 294 Universal Declaration of Human Rights (UDHR) Article 12, of, 72, 253, 267 Article 18, of, 16, 56, 67, 68, 74

Index Universal Periodic Review Process, 76, 185, 258, 391 University of Victoria v. British Columbia (A.G.), (Can), 359 U.N. Permanent Forum on Indigenous Issues, 239, 262, 270 USSC, see United States Supreme Court (USSC) U.S. v. Welsh, (U.S.), 232 U.S. v. Winddancer, (U.S.), 271

V Vaccination Australia, and, 386, 407–409, 426 Canada, and, 319, 321, 349–350 England & Wales, and, 114, 122, 146–147 Ireland, and, 174–176, 183, 198, 206–207 mandatory, 491, 492, 505 New Zealand, and, 463–464 U.S., and, 241, 242, 280–282 Vaccination Act 1853 (E&W), 122 Vaccination Act (Ireland) Amendment Bill, 1879, 175 Vaccines, 58, 92, 93, 122, 123, 146, 147, 207, 281, 282, 349, 350, 386, 463, 506, 520, 548–550 Vejdeland and Others v. Sweden, (ECtHR), 17, 87 Veto right to, 11, 278, 535 Vriend v. Alberta, (Can), 353

W Waitangi, Treaty of Māori, and, 429, 433, 444 Walsh v. St Vincent de Paul Society Queensland (No. 2), (Aus), 378, 422, 516 Ward v. Polite, (U.S.), 292 Watchtower Bible and Tract Society of New York v. Village of Stratton, (U.S.), 262 Watch Tower Bible and Tract Society v. Mount Roskill Borough, (NZ), 431, 486 Weller, P., 115, 117, 150 Whistleblower Protection Enhancement Act (WPEA) (U.S.), 254, 263, 397 Whistleblowers Australia, and, 396–397 Canada, and, 336–337 England & Wales, and, 136–137 general, 4, 18–19, 103, 491, 498–499

Index Ireland, and, 192 New Zealand, and, 445, 452–453 U.S., and, 263–265, 274 White Australia, 377, 395 policy, of, 377, 395 White House Faith and Opportunity Initiative, (U.S.), 237, 250, 502 Whole Woman's Health v. Hellerstedt, (U.S.), 273 Whyte, G., 171, 173, 179, 183, 195, 216, 217, 220 Wicclair, M., 10, 24, 276, 403 WikiLeaks, 136, 264 Williams v. the Commonwealth of Australia, (Aus), 412, 509, 510 Williams v. ‘Threewisemonkeys’ and Durston, (Aus), 393, 544 Wisconsin v. Yoder, (U.S.), 232, 233, 239, 269, 291, 487, 509

X X and Others v. Austria, (ECtHR), 81

569 X v. Belgium and The Netherlands, (ECtHR), 88, 99 X v. Netherlands, (ECtHR), 84 X v. the Sydney Children’s Hospital Network, (Aus), 407 X. v. the United Kingdom, (ECtHR), 82, 84 X, Y and Z v. United Kingdom, (ECtHR), 74, 80, 85

Z Zappone & Gilligan v. Revenue Commissioners & Ors, (Irl), 179, 180, 198, 212 Zaunegger v. Germany, (ECtHR), 78, 81, 82, 99 Z County Council v. R, (E&W), Zelman v. Simmons-Harris, (U.S.), 253, 286, 509 Zolfagharkhani v. Canada, (Can), 361 Zundel v. Canada, (Can), 334 Zylberberg v. Sudbury Board of Education (Director), (Can), 316, 355, 511 Zzyym v. Pompeo, (U.S.), 261, 497