CHAPTER 13 José de Sousa e Brito, Conscientious Objection
The next part of the deskbook addresses various key aspects of the interface between religion and the state. Conscientious Objection, the topic of the chapter by José de Sousa e Brito, has always been one of the most dramatic and crucial of these interaction points. Too often the subject of conscientious objection has been assumed to arise only in the context of objection to military service, but it can also include objection to performing abortions,57 participating in flag ceremonies,58 or taking oaths in the name of God.59 Conscientious objection refers to the refusal to obey a legal duty in the name of individual conscience. Its acceptance, therefore, requires upholding the inviolability of conscience over the application of the law, thereby, in Sousa e Brito’s words, transforming “the principle of tolerance, which is prior to and a social precondition of the constitutional state, into a human right.”60 While freedom of conscience is intimately related to freedom of religion or belief, the two freedoms differ according to Sousa e Brito in that only individuals can claim conscientious objection. Conscientious objection to military service is recognized as a constitutional right in some countries, whereas in others it is covered only at the statutory level, as a part of laws stipulating conditions upon which exemption from military service will be granted. Even where recognized in principle, its extension to conscientious objection based on secular ethical convictions or to selective opposition to particular wars or weaponry remains controversial. In general, a balance obviously needs to be struck between the claims of conscience and the interests of the state. But Sousa e Brito is critical of what he refers to as an “unfortunate American retrogression” that has reverted to nineteenth-century precedent and rejected intervening developments which had insisted that ordinary laws could override religious freedom only where there was a compelling state interest that could not be advanced in some less burdensome way.61
57 Sousa e Brito, chapter 13, 284.
58 Ibid, 285–86.
59 Ibid., 286. The general point that conscientious objection extends beyond military contexts is also addressed by Martínez-Torrón and Navarro-Valls, chapter 10, 232 & n. 83.
60 Sousa e Brito, chapter 13, 274.
61 See ibid., 289.
