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- Existing international treaties and conventions have not afforded the kind of concrete legal protection for freedom of conscience and religion that meets the admirable explicitness of their words. We submit that the UK, EU, and all states where freedom of conscience and religion are under pressure should enact explicit statutory protection.
- This statutory protection should affirm freedom of conscience and religion to be a basic right in a liberal society, with which other rights may be equal but than which none are more important.
- It should also affirm the rebuttable presumption that a conscientious objector’s beliefs about the practice or activity they oppose are sincere.
- There are various ways, some stronger, some weaker, in which conscience protection could be codified. One possible model for statutory protection – one that no signatory to this Declaration should be presumed to endorse as the definitive way forward – is the Religious Freedom Restoration Act 1993 (USA). The Act prohibits the federal government from imposing a ‘substantial burden’ on religious freedom (as well as freedom of conscience) unless the burden can be shown to be (a) in furtherance of a ‘compelling government interest’ and (b) the ‘least restrictive means’ of furthering that compelling government interest.
- We propose that a test such as, or similar to, the ‘least restrictive means’ test should contain an explicit qualification as follows: no substantial burden can be interpreted by a court as the least restrictive means of furthering a compelling government interest if mechanisms already exist, within the public or private sectors, to enable the furthering of that interest without placing a substantial burden on the conscientious objector.
- Further, the definition of ‘substantial burden’ should contain an explicit qualification as follows: a substantial burden on freedom of conscience or religion may consist in the requirement that a person (whether natural or legal) co-operate with some act to which they object on conscience grounds.
- Some forms of co-operation or complicity with acts to which a person objects on conscience grounds are themselves opposed to that same conscience. Not to shield them from compulsion by the law should be regarded as a violation of freedom of conscience. On the other hand, there are kinds of co-operation that can reasonably be considered legitimate and not as violations of freedom of conscience. A balance needs to be struck, and so we call upon the courts in any jurisdiction where the proposed statutory protection is enacted to develop a civil jurisprudence of co-operation, as a way of determining whether a person can reasonably be considered to be a permissible co-operator with some act to which they object on conscience grounds.
- Moreover, the envisaged statutory protection should include the following qualifications of ‘compelling government interest’. (i) A government interest is not compelling merely because the government considers it to be compelling. (ii) A government interest is not compelling merely because any political, financial, or media group or organization considers it to be compelling.
- Rather than being compelled to justify themselves before tribunals, with the implied presumption against the rights of conscience, conscientious objectors should be free to explain, without seeking necessarily to persuade, their objection to their patients, employers, or fellow employees. Nevertheless, a conscientious objector should be required by law to make a statutory declaration stating their objection and its grounds, to be filed with a public body established for the task.
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