Conscientious Objection to Creating Same-Sex Unions: An International Analysis

Canadian Journal of Human Rights, Vol. 1, No. 1, pp. 127-164, 2012

38 Pages Posted: 23 Aug 2012  

Bruce MacDougall

University of British Columbia (UBC), Faculty of Law

Elsje Bonthuys

University of the Witwatersrand

Kenneth Norrie

University of Strathclyde

Marjolein van den Brink

Utrecht University - Faculty of Law; Utrecht University School of Law (the Netherlands)

Date Written: 2012

Abstract

In jurisdictions that recognize same-sex marriages and unions, the question arises as to the extent to which civic officials who normally preside at such unions can refuse such participation for religious reasons. This paper examines this issue in the context of four jurisdictions: Scotland, Canada, the Netherlands and South Africa. What is striking is how different is the process of reaching a resolution in each jurisdiction, though the actual result might be the same. This difference arises because of the jurisdiction-specific reasons why same-sex marriages and unions are recognized, how they are recognized, the status of the officers who preside over the relevant services, and the historical-legal place of religion in each jurisdiction. Against these backgrounds, reasonably similar arguments relating to discrimination and accommodation are raised, but play out differently given the varying contexts. There results from this comparative analysis some lessons that can be transported across jurisdictions but also considerable caution as to the generic quality of such lessons.

Keywords: Marriage ceremonies, Gay marriage, Same-sex marriage, Gay rights, Discrimination, Accommodation

Suggested Citation

MacDougall, Bruce and Bonthuys, Elsje and Norrie, Kenneth and van den Brink, Marjolein, Conscientious Objection to Creating Same-Sex Unions: An International Analysis (2012). Canadian Journal of Human Rights, Vol. 1, No. 1, pp. 127-164, 2012. Available at SSRN: https://ssrn.com/abstract=2134325

Bruce MacDougall (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

Elsje Bonthuys

University of the Witwatersrand ( email )

1 Jan Smuts Avenue
Gauteng 2000
South Africa

Kenneth Norrie

University of Strathclyde ( email )

16 Richmond Street
Glasgow 1XQ, Scotland
United Kingdom

Marjolein Van den Brink

Utrecht University - Faculty of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

Utrecht University School of Law (the Netherlands) ( email )

3508 TC Utrecht
Utrecht
Netherlands

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