By Pierre-Arnaud Perrouty | 25 April 2016
Catholics for Choice
Like many other civil society organizations, religious or not, the European Humanist Federation is greatly concerned by the increased presence of extremist religious groups in the European Union, the Council of Europe and the United Nations. European Dignity Watch, European Centre for Law and Justice, European Institute of Bioethics, World Youth Alliance–Europe—NGOs like these have been around for a long time. But over the past few years, these groups have gained visibility: they are more vocal, more coordinated, better at using social media—in short, more professional. One tactic was to reframe their agenda using human rights arguments, or at least their very own retelling of selected human rights, such as the right to life or human dignity, and, of course, the right to freedom of religion.
Heated public debates
If we look just at the European Parliament, there were numerous examples of heated debates over the past three years. Examples include the Estrela Report, which was designed to promote sexual and reproductive health and rights (SRHR). It was defeated in 2013 after a massive social media campaign in which detractors managed to make the name synonymous with compulsory masturbation for children and legalized pedophilia. (The arch-conservative blog Turtle Bay and Beyond was one source of this confusion; it referred to the “fanaticized pro-abortionist” supporters of “The Estrela-Abortion-and-Masturbation-Report.”) The Lunacek Report, which proposed an EU roadmap against homophobia, fared better, passing in 2014. It would seem that an equal playing field for LGBTI individuals wouldn’t be controversial. But according to European Dignity Watch and others fearful of taking a stand against homophobia, the Lunacek Report would implement “the belief that fundamental rights should be more rigorously applied to one social group than others.”
The “One of Us” campaign was a European Citizen Initiative to stop EU funding for any activities that involve the destruction of the human embryo—including human embryonic stem cell research and overseas aid for family planning and abortion. “One of Us” had friends in the highest Catholic circles: It was created by an Italian MEP, Carlo Casini, a member of the Pontifical Academy for Life, and the signature campaign began in Vatican City. With the support of European bishops’ conferences and the pope, the NGO managed to obtain more than 1.5 million signatures, though the petition was ultimately turned down by the European Commission.
Despite the usual doomsday predictions from conservative circles, the Tarabella Report on gender equality and the Rodrigues Report on gender equality at school both passed in 2015. Not bad in just three years.
These initiatives touched on SRHR, LGBTI issues and gender equality—all issues very dear to humanists. They also showed that it is increasingly difficult to have a dispassionate debate on these topics, as today’s ultraconservative groups do not play by the rules of public debate. Their claims that sexual education courses would make masturbation compulsory for toddlers are not only false, they are simply insane. But the point is that they do not care: They are not trying to have a rational discussion, but rather to create enough fuss around a proposal so that some MEPs (the “movable middle”) will become reluctant to vote for it because they fear the subject is too controversial and would cost them too many votes back home. These extremist groups also fuel confusion by mixing up issues: genuinely important topics get mixed in with less important ones.
Focusing on secular values
But to be fair, some humanists also tend to focus on the wrong issues. The fact that cities around the world put up Christmas trees or crèches on public squares is not a big issue, but crucifixes on the walls of public schools, city halls or courtrooms are significant. Humanists are fine with employees of a private company wearing religious garb like a cross or a turban, but we object to these same companies refusing to serve a lesbian, gay or transgender person.
Conscience is at the very heart of human nature and deserves the highest protection. The principles that should guide us in these debates are the very core of secularism: (i) the state and institutions should remain impartial, behaving neutrally regarding religions and life stances; (ii) religions per se do not hold rights, only people do; and (iii) all human rights should be protected, and the exercising of a right, including the right to freedom of religion and belief, cannot affect the rights of others.
Regulating conscientious objection?
When ultraconservative groups are unable to prevent a law from passing, they have developed another strategy—turning conscience rights into a claim for conscientious objection. Freedom of conscience (the right to hold a religion or not, or to change one’s religion) is inherent to human beings and is among the few rights that are absolute. While the right to manifest one’s religion can be limited under certain conditions, conscience is at the very heart of human nature and deserves the highest protection. But it is a completely different story if you claim that you should be granted special rights out of respect for your conscience or if you are looking for an exemption to the law. Or, to put it in the terms of the Religious Right: To claim that your freedom of religion would be violated if you were forced to perform a legal action or to deliver a service that is against your conscience.
We have heard this argument repeatedly on SRHR and LGBTI issues. There are numerous cases taking place on both sides of the Atlantic and elsewhere: a therapist in the UK refusing to counsel gay couples; doctors refusing to perform abortion in Italy although it is legal; pharmacists in Belgium refusing to deliver a drug like the morning-after pill; civil servants refusing to perform same-sex marriages in France or to issue marriage licenses to same-sex couples in the US; a Colorado bakery owner refusing to make a wedding cake for same-sex couples, etc. One of the most famous instances of standing in the way of the law remains the refusal of King Baudouin of Belgium to sign the law decriminalizing abortion in 1990 out of conscientious objection. He was said to have been “impeached” for one day—the time for the prime minister to sign the law—and was returned to the throne immediately after.
It is true that some laws contain a conscience clause. Such clauses are generally inserted as a result of a political bargain. In the healthcare sector, they usually provide safeguards for the patients. Firstly, patients must be referred to another doctor willing to perform the treatment. And secondly, these clauses should be construed strictly and cannot be raised in emergency cases. Beyond political bargaining, it is also true that in some cases, you do not want an objector to perform the action—no woman would want to have an abortion performed by a doctor who feels strongly against it. So while conscience clauses with safeguards may seem reasonable, two problems can arise. First, if too many people object, there is obviously a problem of effectiveness—as in Italy, where the rate of medical doctors objecting to abortion is higher than 90 percent in certain regions. Situations like this call for a better regulation. Both the European Committee on Social Rights (in a 2013 case, IPPF EN v. Italy) and the UN Committee on the Elimination of all Forms of Discrimination against Women (regarding Hungary’s increasing number of doctors with a conscientious objection to abortion) have come to the conclusion that states need to regulate conscientious objection by “establishing regulatory framework and monitoring mechanism of the practice.”
This leads to the second problem: Can conscientious objection be regulated at all? You can have safeguards, but will they work in practice? Is there any real monitoring? You can limit the clause to the persons directly involved with a treatment (as opposed to administrative staff, for instance). You can deny institutions the right to object (as they have no conscience). But it is difficult to guarantee that individuals will not be harmed in one way or another while objectors exercise their rights. Some voices from the healthcare sector are calling for a ban of such clauses because of the risk of abuse and of the lack of a real monitoring mechanism.
A Trojan Horse: the absolute right to object
The central claim of some religious groups is that there is a general right to conscientious objection linked to a more general framework. This is no improvised argument, but rather a coordinated effort, a Trojan horse to undermine certain laws they dislike. In a press conference held in the plane that was bringing him back to Rome after his visit to the US in September 2015, Pope Francis was asked if he would support individuals, including government officials, who refuse to validate same-sex marriages out of conscientious objection. His answer was very clear: “Conscientious objection is a right. If one person does not accept conscientious objection, she violates a right. It is a human right.”
However, under European law at least, there is no such thing as a general right to conscientious objection outside military service. As mentioned earlier, it is only recognized under specific laws and subject to certain safeguards. And yet, groups systematically refer to a “universal human right to conscientious objection.” They derive it from three sources: a 2010 Resolution of the Parliamentary Assembly of the Council of Europe on conscientious objection; Article 10 of the Charter of Fundamental Rights of the European Union; and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). But even a quick look at these texts proves there is no such thing as a general right to conscientious objection.
The Council of Europe Resolution (“The right to conscientious objection in lawful medical care,” adopted in 2010) is nonbinding and was a complete hijacking. Initially tabled by a British MP who wanted to regulate conscientious objection, it ended up saying the exact opposite, requesting member states to “guarantee the right to conscientious objection,” including for institutions such as hospitals. It was widely criticized.
Pursuant to Article 10 of the EU Charter of Fundamental Rights, “The right to conscientious objection is recognized, in accordance with the national laws governing the exercise of this right.” So, there is no guarantee outside of specific laws.
Article 18 of the ICCPR (protecting freedom of religion or belief) received a significant comment regarding military service. The UN Human Rights Committee stated, “The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.” That is to say, there is no recognized right for conscientious objection outside the context of military service.
Similarly, the European Court of Human Rights (ECHR) has developed a consistent case law over the years, culminating in Bayatyan v. Armenia (July 7, 2011), which recognized a right to conscientious objection under Article 9 of the ECHR, but again, only regarding military service. And there is a strong case in arguing that one cannot compare a person objecting to compulsory military service with someone who has chosen a profession with a code of ethics, such as a medical doctor, a civil servant or a service provider.
Where religious and nonreligious people can agree
From a humanist perspective, the right to freedom of thought, conscience and religion should be protected just as any other human right—no less, no more. But the necessary protection of freedom of religion and belief cannot grant a license to discriminate. Invoking freedom of religion to refuse to serve a same-sex couple amounts to opening the door to more than one kind of discrimination, whether based on sexual orientation, race or gender. In these matters, the dividing line is not between religious and nonreligious people, but rather between progressive people, religious or not, who genuinely care for human rights on the one hand, and extreme religious groups who seek to instrumentalize human rights to promote strict religious views on the other. In this respect, a movement like the Global Interfaith & Secular Alliance is necessary to counter these groups and reclaim the values they strive to confiscate for their benefit.
Pierre-Arnaud Perrouty is a human rights lawyer by training and the executive director of the European Humanist Federation and secretary general of the Belgian Human Rights League.
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