Tuesday, September 18, 2012

Daily Read: Conscience Clauses and Same-Sex Marriage

In the United States, there can be First Amendment Free Exercise Clause arguments against participating in same-sex marriages (or other matters involving sexual minority equality), as in the town clerk controversies in New York.  Similar constitutional controversies between "conscience" and same-sex marriage occur in other jurisdictions.

With a focus on civil servants (or their equivalents) who act as marriage officers and who object to participating in the legal institutionalization of same-sex unions, co-authors Bruce MacDougall (University of British Columbia, Canada); Elsje Bonthuys (University of the Witwatersrand, South Africa); Kenneth Norrie (University of Strathclyde, Glasgow, Scotland), and Marjolein Van den Brink (University of Utrecht, the Netherlands) have produced an important comparative discussion centering on Canada, Scotland, South Africa, and the Netherlands, in their article  "Conscientious Objection to Creating Same-Sex Unions: An International Analysis."  It's published in the Canadian Journal of Human Rights, and available on ssrn.

The_Interrupted_Wedding_by_Edmund_Bristow
Their explorations of the specifics of jurisdictions are excellent, but it is the final sections of the article that make the most vital contribution.  By discussing the conflict of constitutional values in more generalized terms - - - not burdened by specific doctrinal developments and histories - - - the authors ask whether it is possible to satisfy both the equality and conscience concerns.

It's a question without an easy answer, but this article frames the issues and provides several perspectives. This would be a terrific article for a First Amendment class considering these issues.

RR
[image: "The Interrupted Wedding" by Edmund Bristow circa 1860 via]

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Comparative Constitutionalism, First Amendment, Fundamental Rights, Religion, Scholarship, Sexual Orientation | Permalink

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