a network of constitutionalists from countries throughout the world
Over the coming days, we are featuring each of the 20 workshops in the 10th IACL World Congress 2018 on “VIOLENT CONFLICTS, PEACE-BUILDING AND CONSTITUTIONAL LAW”, being held in Seoul, Republic of Korea on 18-22 June 2018. Full details are on the congress website, in English and French, along with information on how to submit a paper. Papers may be in either French or English. Please circulate to colleagues interested in the subject.
The question to what extent attitudes or obligations based on religious beliefs should be accommodated in liberal, secular democratic societies that are increasingly multicultural and multi-religious, has become a paramount one. Traditionally, the practice of conscientious objection arose in the context of individuals refusing to bear arms in a military conflict or to serve in the armed forces, and was rooted in the right to freedom of thought, conscience and religion. Under the current predicament, however, the claimed space for religious exceptions has become much wider and diverse, as the right to religious objection is most frequently invoked in conflicts implicating abortion, assisted reproduction techniques, contraception, LGBT equality, and same-sex marriage. Moreover, in contrast to traditional invocations of conscientious objection aimed at protecting minority views (such as pacifism) and minority religious practices, today religious exemptions are often invoked in the name of traditional religious views in order to thwart the implementation of laws intended to advance the equality of marginalized groups and of minorities, (e.g., refusals to serve others on the ground of their sexual orientation). Current day litigation on both sides of the Atlantic is often coordinated by the same conservative lobbies and NGOs, most of which originate in the US and expand their reach to Europe, motivated in part by the aim of minimizing opportunities for US courts to rely on progressive European jurisprudence for purposes of rejecting religious conscience challenges to antidiscrimination laws.
This workshop is designed to explore the new challenges of conscientious objection from a comparative and transnational perspective. Questions to be addressed include the following:
• Liberal philosophers, such as Dworkin, Rawls and Raz, have stressed the importance of conscience objection to the point of defending a right to civil disobedience under certain circumstances, in cases in which law impinges on fundamental freedoms. But in a pluralistic polity, where individuals and groups hold irreconcilable convictions, what are the criteria to determine what exemptions from generally applicable law—if any– should be granted on the basis of a genuine assertion of conscientious objection?
• Is a ‘general right to conscientious objection’, which would exempt religious individuals and/or corporate entities under the latter’s control from antidiscrimination and other laws interfering with manifestations of their beliefs, consistent with a secular, pluralistic democracy?
• Does the focus on rights obscure other more desirable pathways to accommodation and resolution of conflicts between the conscientious objector and those adversely affected by the latter’s action?
• What is the role of courts in adjudicating religious exemption claims by religious majorities and minorities?
• Should claims of religious majorities be treated differently than those of religious minorities and left to the ordinary democratic process?
• Is there a difference if such claims are expressed in the language of constitutional law rather than in that of human rights law?
• To what extent are claims of religious exceptions constitutive of political identities?