This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Javier Martínez-Torrón (Complutense) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:
The following ideas are not an attempt to cover the entirety and complexity of the issues raised by the claims for the so-called religious exemptions. They just try to emphasize some aspects that are often, in my opinion, not sufficiently considered in legal debates.
1. Taking the right approach
The very title of this session—Religious Exemptions—may be misleading. It obviously refers to situations where there is a conflict between conscience and law, that is, between moral obligations (not necessarily rooted in a religious conscience) and legal obligations. For the purpose of these brief reflections, I will refer to exemptions on moral grounds rather than to religious exemptions, considering that objections on religious and objections on other ethical grounds must be treated equally. In Europe, this type of conflict is often addressed under the term “conscientious objections.”
From my perspective, it is a mistake to analyze these conflicts from the perspective of legal exemptions, emphasizing that some people seek to be exempted from complying with the law on moral grounds (often deriving from religious beliefs). The term “exemption” suggests the existence of a privilege or an anomaly. And I profoundly disagree with the view that conscientious objectors are a “human anomaly” or seek privileged treatment. Such conflicts usually involve people with moral positions different from the majority. To consider that people in a religious/ethical minority are “anomalous” implies a prejudice incompatible with the contemporary notion of fundamental rights. And, certainly, we would not depart from that premise if we were dealing with other characteristics that define people’s identity and way of living, such as sexual orientation, ethnic origin, or physical deficiencies. Just the opposite, we assume that it is important to organize society, and the legal system, in a way that takes such characteristics into account so that those persons are not excluded or treated as second-class—“anomalous”—citizens.
In this regard, it is important to bear in mind two things. First, freedom of religion or belief is part of the applicable law in most countries. It is recognized and protected by international instruments as well as by most national constitutions, with one or other terminology. Such freedom entails not only the right to choose one’s beliefs but also the right to behave in accordance with them; that is, freedom of conscience, the right to act following the supreme rules dictated by one’s moral conscience.
The second thing to remember is that we must not trivialize the right of free choice in matters of religion and moral values, as if changing one’s religion or beliefs could be done easily or without consequence. For responsible individuals, beliefs are not a “free choice” as if they could simply pick any of the brands offered in a supermarket. Moral choices present themselves to the individual as something compelling, with internal coercion; something that must be followed. Indeed, this is precisely the function of freedom of religion or belief: to guarantee every person’s autonomy to decide which truths must be accepted and which moral values must be respected, assuming that no State is entitled to impose a uniform truth or moral on its citizens. Therefore, religious and ethical choices are not accessory or dispensable. They are an essential part of the identity of a person.
2. Neither is freedom of conscience a privilege nor are State laws morally neutral
Thus, those who demand that their obedience to the law is made compatible with their religious or moral convictions are not asking for a privilege but just for the recognition of the practical consequences of a fundamental right. Citizens have the reasonable expectation that the legislator will take into account the moral values of the entire society and not only of the largest part of it. Just as persons with physical limitations should reasonably expect that the street development in a city or the design of access to public places will be built in a way that allows people in wheelchairs or the blind to use them. It is not a matter of obtaining privileges but of expecting (and requiring) that public authorities take religious/belief diversity into account and adopt an inclusive attitude about moral discrepancies in society.
Moreover, it is important to realize that conflicts between conscience and law are not normally caused by people who disrespect the rule of law or lack civic awareness. On the contrary, most often those conflicts arise precisely among people with moral integrity; they do not try to infringe or evade the State laws, they want to move the law to accommodate or integrate their belief system so that they are not condemned either to act illegally or to renounce an essential part of what they are—their conscience.
In this regard, we must not forget that State laws have ethical roots, more or less visible depending on the particular rules. They are based on certain moral values, which are usually those accepted by the majority in a given society. It is not, therefore, surprising that there may be conflicts between the values inspiring the law and the values that lead the lives of people who hold moral minority positions in that society, especially if the legislator has not been sufficiently sensible as to identify those minority positions and made every possible effort to accommodate them instead of proscribing them (explicitly or implicitly) as illegitimate or antisocial. Indeed, by and large, the possibility of conflicts between conscience and law is higher when two circumstances are present. On the one hand, the immediate and direct moral significance of the law in question (e.g., laws that have an impact on human life, such as those imposing military service, permitting the death penalty, and liberalizing abortion or euthanasia). And on the other hand, the lack of an inclusive attitude on the part of the legislator vis-à-vis minorities, which can lead to the discrimination of individuals and groups.
3. Legitimate limitations on freedom of conscience
The foregoing does not imply that, in a situation of conflict between a legal rule and freedom of conscience, the latter must always prevail. The legal reaction to such situations must be inspired by two factors. First, it is essential to recognize that there is a limitation on the fundamental right to freedom of conscience, or discrimination on the ground of religion or belief, even if the legal rule in question is applied equally to persons of any religion or belief and is therefore considered to be “neutral”—in reality, as indicated above, no legal rule is ethically neutral. Second, we must bear in mind that every limitation on freedom of conscience must be duly justified as necessary, without assuming that the existence of the legal rule imposing the limitation constitutes, per se, a sufficient justification.
In this case, the criterion utilized by the European Court of Human Rights to decide a case on conscientious objection to military service (Bayatyan GC, 2011) can be of help: the existence of viable and effective alternatives to the solution imposed by the limitative rule in question. If there are alternatives that would permit the reconciliation of the public interest pursued by the rule with the interest—which is also a public interest—in protecting the freedom of conscience of those opposing the rule on serious moral grounds, the restriction imposed by the law cannot be considered “necessary in a democratic society.” Only once the actual necessity of a limitative legal measure has been established is it possible to pass to an analysis of its proportionality, which implies, among other things, assessing whether the limitations imposed by the law on freedom of conscience have been reduced to a minimum, in line with the judicial doctrines of minimal impairment in Canada, and least restrictive means in the US.
If we follow this legal approach to conflicts between conscience and law, there should not be any fear that a careful and sensible protection of freedom of conscience will end up causing a potentially uncontrollable legal chaos, as has been occasionally suggested by some courts and scholars. The external aspect of freedom of conscience, i.e., the freedom to behave according to one’s own moral judgments, is not an absolute right. Therefore, situations of conscientious objection must be treated as any other situation of conflict between legitimate legal interests, i.e., through a balancing process. And this balancing process must depart from the premise that the protection of the freedom of conscience of each and every person is not only a private interest of the relevant individual but, being a fundamental right, also a paramount public interest whose guarantee is a responsibility of the State and the international community. We are obliged to protect every person’s freedom of conscience not because we consider his moral values reasonable but because conscience is a sphere of personal autonomy that is, in principle, intangible, and interfering with it is justifiable only by reasons of strict necessity. Just as freedom of expression must be protected not because we agree with the ideas expressed by a person but because we are persuaded that the existence of a democratic society requires the possibility of a free exchange of ideas in the public space.
4. Final remarks
Ultimately, the increase of conflicts between conscience and law in a society is likely a symptom of the failure of the legislator to be aware of the ethical dimension of legal rules, to take religious and ethical diversity into account, and to adopt an inclusive approach that prevents, or at least minimizes, the possibility that citizens who respect their conscience find it morally impossible to obey some legal provisions. When that occurs, the courts should be given the power to solve those conflicts from the perspective of a clash of rights following a balancing process that departs from the premise that the protection of freedom of conscience is a paramount public interest and that any limitation on such freedom—even if it is the consequence of a “neutral” law that pursues a legitimate purpose—has to be justified as strictly necessary, not just useful or convenient.
 This is one of the conditions required by art. 9.2 of the European Convention on Human Rights to make a limitation on freedom of thought, conscience, and religion justifiable. The other two are: that the limitation is prescribed by law; and that it pursues one of the legitimate aims specified in the same article (the protection of public safety, order, morals, health, or the rights and freedoms of others).
 This is what the Strasbourg Court calls the forum externum, as distinguished from the forum internum (right to choose one’s beliefs), which is an absolute right, not susceptible to State interference.