Paul Scholten Centre Colloquium with Dr Stijn Smet (Law, Ghent University).
In this paper, I analyse conscientious objection cases in terms of (the limits of) toleration in liberal democracies. I focus primarily on how the law deals with conscience-based refusals by civil servants to register same-sex marriages/partnerships in the United Kingdom and the Netherlands. I argue, contrary to the majority scholarly opinion, that conscientious objection cases can principally be understood in terms of vertical toleration, i.e. toleration by the state towards individuals. I acknowledge that there exists a certain degree of tension between toleration, which necessarily implies disapproval, and the liberal state's duties of neutrality and respect for human rights. I nevertheless insist that it is both possible and desirable to carve out limited space for vertical toleration in liberal democracies to deal with instances in which persons' practices and/or opinions prima facie contravene core liberal values. I discuss, among other examples, conscientious objection clauses in abortion legislation as falling within the limited scope for vertical toleration in and by the liberal state. In relation to civil servants' refusal to register same-sex marriages, I argue that the UK courts and the Dutch legislator have drawn the limits of toleration at the point where state agents cause same-sex couples expressive harm.
Research colloquium, organised by the Paul Scholten Centre. This colloquium is open to all, no registration required. A copy of the paper can be obtained via email@example.com.