Conscientious Objection to Same-Sex Marriages: Beyond the Limits of Toleration

Abstract

When civil servants conscientiously refuse to register same-sex marriages, a clash arises between freedom of religion and same-sex equality. The scholarly world is divided on the optimal way to tackle this human rights clash. States, however, are not. Courts and legislators in the US, the UK and the Netherlands – among others – have decisively and unequivocally sided with same-sex equality. This Article contributes to the debate by presenting an alternative to existing scholarly analyses, which the author finds wanting. The Article’s primary aim is to offer a coherent account of the relevant practice in the UK and the Netherlands. The Article’s core argument is that this practice is best understood in terms of the limits of toleration in liberal States. The author argues, in particular, that the UK courts and Dutch legislator have drawn those limits at the point where civil servants cause same-sex couples expressive harm.