Law by country

The recognition of the right to religious conscientious objection in the EU Member States

All the EU Member States are to recognize to some extent at least the right to religious conscientious objection, understood as a right not to be obliged to perform certain otherwise compulsory legal duties where such performance would violate one’s religious convictions, unless the refusal to perform these duties would lead to a violation of the rights of others.

Where it is recognized either under concordats or under constitutional or legislative provisions, conscientious objection – which under these instruments may be invoked either by the members of the clergy alone, or by all persons who thereby seek to manifest their religious beliefs – concerns especially four activities :

  • military service13 ;
  • the celebration of weddings, in particular in which one of the persons has divorced from a previous marriage,
  • same-sex marriage or unions such as registered partnerships between two persons of the same sex ;
  • the provision of health services, in particular abortion, euthanasia, artificial fertilisation and medically assisted contraception.

The main provisions which exist in the Member States with regard to the other fields in which religious conscientious objection is recognized.

The following are the most significant examples14 :

In Austria, whereas under Article 97 para. 1 of the Criminal Code voluntary termination of pregnancy is allowed during the first three months of pregnancy without a need for a medical indication (and this is a medical service which, in principle, physicians should perform as part of their obligations as partners of the national health insurance program : see Art. 338 to 342 of the General Social Security Act (Allgemeines Sozialversicherungsgesetz – ASVG)), Article 97 para. 2 states that no physician, nurse or paramedic is obliged to perform or to assist in such a voluntary abortion, and Article 97 para. 3 adds that none may be discriminated against on the basis of him or her carrying out an abortion or refusing to do so. A similar exemption exists with respect to artificial and assisted fertilization, which is permitted under Austrian law in certain conditions. According to Article 6 of the Reproductive Medicine Act 1992 (Fortpflanzungsmedizingesetz, BGBl. No. 275/1992, as amended), no physician, nurse or paramedic is under a duty to perform or assist in a medically assisted fertilization and he or she must not be discriminated against for carrying out such fertilization or for refusing to take part in it. This presumably also applies to pre-implantation diagnosis (PID), which is a controversial method used in assisted fertilization in order to detect certain disabilities before implanting the fetus.

In Belgium, the right to conscientious objection has been explicitly recognized in the context of abortion and euthanasia. Although the general regulations relating to the medical profession and to the rights of the patient do not allude the right to conscientious objection by medical practitioners, whether in the provision of certain medical services15 or in the information they must give to the patient,16 specific clauses were inserted in the legislations which have partly decriminalized abortion in 1990 and euthanasia in 2002. The Law of 3 April 1990 decriminalizing certain aspects of the voluntary interruption of pregnancy17 lists the conditions under which abortion will be decriminalized (while the general principle of the criminal prohibition is maintained in Article 348 of the Criminal Code). The Law provides explicitly that no medical doctor, nor any nurse or aid to the doctor, will be obliged to take part in the abortion. The Law however imposes on the medical doctor to inform the woman seeking abortion of his or her refusal to perform abortion for reasons of conscience, at the first visit of the patient.18

The Law of 28 May 2002 decriminalizing euthanasia19 entered into force on 22 September 2002. This law decriminalizes euthanasia under certain well-defined conditions, which are to be interpreted strictly, as the general prohibition remains in force. The law contains a provision similar to the conscientious objection clause of the Law on abortion, although – apart from his or her obligation to inform the patient immediately of his or her refusal to perform an euthanasia –, the medical doctor also is imposed an obligation to transfer the medical file of the patient to any other medical practitioner designated by either the patient him- or herself or the representative of the patient.20 It may be added that, in the Law of 10 November 2005 completing the Law of 28 May 2002 with regard to the delivery of euthanazing drugs upon medical prescription,21 there is no right to conscientious objection explicitly recognized to the pharmacologist. This does not necessarily imply that the individual pharmacologist may not refuse to deliver such drugs on religious grounds, although no case-law has recognized this yet. It it notable however that the Law of 10 November 2005 provides that the government shall adopt the measures necessary to ensure the availability of euthanazing drugs.22 This may be seen to suggest that, if a pharmacologist refuses to deliver the drugs medically prescribed in the context of a euthanasia, this must not result in the drug becoming unavailable to the patient. This argument remains however speculative, in the absence of further clarifications in the applicable legislation.

In Cyprus, the Medical Profession is regulated by the Regulations of Conduct of Doctors that were issued under the Doctors (Council, Discipline and Pension Fund) Law of 1967 and 1970. According to Article 8 of the Regulations, a doctor may refuse medical treatment to a patient except in cases of emergency or humanitarian duty; this general provision may be relied upon, in principle, where the motivations for refusing to provide a medical service is religious or ideological.

In Denmark, the Act of Registered Partnership, Section 3 (Lov om registreret partnerskab)23, provides that registered partnerships may be passed, which have essential the same legal consequences, with some few exceptions, as traditional different sex marriages.24 However the registered partnership ceremony can only be performed as civil marriage : Church wedding is not an option, not even for religious communities willing to do so. In relation to civil marriage, no right to conscientious objection for the official exists, and therefore he or she cannot as such refuse to perform the wedding ceremony. However, if after the civil ceremony the registered partnership is to receive an ecclesiastical blessing, the priest is not obliged to perform the blessing and can refuse to do so.25

Moreover, according to the Administrative order on weddings in the State Church26, priests are not obliged to marry divorced persons. Furthermore, if it is of the opinion of the priest due to other religious reasons, that he or she is unable to marry a couple, the priest must present the case before the Bishop. The Bishop will decide whether the priest should be exempted or not.

With regard to the provision of health services, according to the Consolidated Act on induced abortion (Lovbekendtgørelse 2004-06-16 nr. 541 om svangerskabsafbrydelse og fosterreduktion), Section 10 subparagraph 2, doctors, nurses, midwifes and social and health assistants, or students in these professions, for whom it is contrary to their ethic or religious beliefs to perform or assist in induced abortion, can apply for and be granted exemption.

In Finland, although previous case law refused to accommodate the duties of a civil servant or someone else offering a public service on account of his or her religious or moral conviction,27 a more tolerant attitude in respect of conscientious objection has developed since the late 1980s. In a leading textbook on the law on civil servants, published in 1988, support was given to the limited accommodation of a civil servant’s duties on account of his or her religious or other convictions. As criteria for when a right of exemption could be granted the authors referred to situations where the task in question was not an essential and permanent part of the civil servant’s duties and the rights of others did not require that the civil servant in question (instead of someone else through redistribution of tasks) performed the task.28 Indeed, in the Government Bill for a new chapter II to the Constitution, submitted to Parliament in 1993, the proposed provision on a constitutional right of freedom of conscience and religion in respect of conflicting legal duties was explained as having ‘interpretive effect in resolving conflicts between freedom of conscience and various obligations. The provision would generally support such distribution of labour or other administrative arrangements that help to avoid ordering a person to perform professional duties that are in conflict with his or her conscience.

However, conflicts between, for instance, the duties of a civil servant and freedom of religion and conscience will need to be assessed case by case. Therefore one cannot derive from the provision a general right for a civil servant to refuse performing one’s official duties on account of conscience.’29

The Constitution came to include an explicit provision according to which no one is obliged to participate in the practice of a religion against his or her own conviction.30 This clause is of direct relevance in situations where the old tradition of Lutheranism as state religion is still reflected in the form of religious ceremonies in public institutions, e.g. schools. For instance, a schoolteacher has a right to be exempted from attending such ceremonies.

In France, Art. L.2212-8 of the Code of Public Health (Code de la santé publique) allows medical physicians to invoke a ‘conscience clause’ on the basis of which they may refuse to perform an abortion. However, they are obliged to inform the woman seeking abortion without delay of their intention to invoke the clause. Although this clause also may be invoked by health care practitioners employed in institutions, the heads of services in public health care institutions and those which take part in the provision of public health care services may not invoke the clause in order to oppose the performance of abortions within their service (Loi n°2001-588 du 4 juillet 2001 relative à l’interruption volontaire de grossesse et à la contraception).

In Germany, the Constitution guarantees freedom of conscience unconditionally. Pursuant to Article 4 para. 1 Grundgesetz, ‘freedom of faith and of conscience … shall be inviolable’. Accordingly this means that no one can be obliged by State powers to act against his or her conscience. Freedom of conscience is a norm of fundamental value and of high constitutional status, which is to be respected in the framework of every activity of State authorities. This is a continuous jurisprudence of the Federal Constitutional Court and of the Federal Administrative Court31.

In Hungary, the Constitutional Court delivered a judgment in 1991 which concerns the duties of medical physicians in relation to legally permitted abortion (judgment 64/1991, (XII.17.) AB határozat). The Court recognized that medical practitioners have a right to religious conscientious objection, however it considered that certain restrictions to the freedom of religion which this right is derivated from may be allowed unless they are unreasonable. Specifically, the Court considered that in any employment relationship, the employee may not object to the performance of duties which form a substantive part of the profession. It considered that only non therapeutic abortions – i.e., not medically prescribed – could be considered as not part of the normal activities of a gynaecologist.

In Italy, conscientious objection by health workers in certain medical practices is regulated by Article 9 of Law 194 of 22 May 1978, as to the procedures correlated with voluntary abortion and Article 16 of Law 40 of 19 February 2004 as to medically assisted conception. In both cases, the law provides that the service requested (abortion or conception) can be performed only at certain publiclyrun or legally certified clinics and that conscientious objection shall exempt health personnel and allied health personnel from carrying out procedures and activities specifically and necessarily designed to bring about the termination of pregnancy, but shall not exempt them from providing care prior to and following the termination. The above-mentioned law 194/1978 also provides that hospitals and health care clinics are required to ensure that the medical procedures are carried out and pregnancy terminations requested are performed in accordance with standardized procedures. The regions are to supervise and ensure implementation of this requirement, if necessary, by transferring personnel from one institution to another, according to the needs. In any event, the law lays down that conscientious objection may not be invoked by health personnel or allied health personnel if, under the particular circumstances, their personal intervention is essential in order to save the life of a woman in imminent danger.

In the Netherlands, the Commissie Gelijke Behandeling (CGB) – the independent equality body which ensures compliance with the General Equal Treatment Act (Algemene Wet Gelijke Behandeling) – has been confronted with the case of a public servant who, for religious reasons, refused to celebrate a same-sex marriage and whose contract was not renewed on that ground (opinion 2002-25). The CGB arrived at the conclusion that the General Equal Treatment Act had been violated in this case, as other public servants were prepared to celebrate same-sex marriages, so that there were insufficient reasons to refuse to renew the contract of the applicant. The CGB observed in that respect that, in preparing the General Equal Treatment Act, the legislator had acknowledged that conscientious objections on religious grounds do occur and that, in principle, they ought to be respected. The CGB has confirmed this case-law in a case (Opinion 2002-26), and its approach is compatible with its previous opinions in this matter (Opinions 1997-46 and 2000-13).

In Portugal, Article 41 (6) of the Constitution guarantees ‘the right to conscientious objection, as in accordance with the law’. Article 12 of Law nº 16/2001 (Law of Religious Freedom) further specifies this right. It provides :

  • Freedom of conscience includes the right to object to the compliance of laws that
  • contradict the imperative commands of one’s own conscience, within the limits of the rights and duties imposed by the Constitution and under the terms of the law that may regulate the exercise of the conscientious objection.
  • The commands of conscience that are considered as imperative are those whose infringement involves a serious offence to one’s moral integrity and, consequently, make any other behaviour as not mandatory.
  • Conscientious objectors to military service, without excluding those who also invoke a conscientious objection to civil service, have the right to a civil service system, which respects the commands of their conscience, as long as it is compatible with the principle of equality. Therefore, the right of a medical professional to refuse to perform an abortion if such an act goes against his or her religious or philosophical beliefs, would be based on the Constitution itself.

In Spain, although the Constitution only refers to conscientious objection in the context of

military service (Article 30 (2) of the Constitution), this right may be derived from the general protection of freedom of religion under Article 16 of the Constitution. The Organic Law 7/1980 on freedom of religion (Ley Orgánica 7/1980, de 5 de julio, de libertad religiosa (BOE del 24 de julio)) does not refer to conscientious objection, but this is without prejudice of the interpretation which could be given to Article 16 of the Constitution, which is to be interpreted in accordance with international and European human rights treaties.

Indeed, this has been the conclusion the Constitutional Court arrived at when it examined an action for annulment of the reform of the Penal Code partially decriminalizing the voluntary interruption of pregnancy : although the Decree 2409/1986 of 21 November 1986 on health care centres was silent on this question, the Constitutional Court considered that health care pratitioners may invoke Article 16 of the Constitution in order to justify refusing to perform certain operations which would violate their religious beliefs (STC 53/1985, judgment of 26 August 1988).

This has been confirmed in later judgments by the same court, delivered on 16 and 23 January 1998. However, the High Courts of the Communities have emphasized that the exercise of this right to conscientious objection by health care practitioners may not endanger the right of the patient to have access to medical services. Thus, the High Court of Castilla-La Mancha (social chambers) insisted in a judgment of 11 June 1999 that the exercise of conscientious objection by a gynaecologist should lead to his replacement by another gynaecologist to perform the operation sought; the High Court of Valencia, in a judgment of 28 May 2003, awarded damages to a woman who gave birth to a child with serious malformations, whose gynaecologist, for reasons of conscience, had not revealed this information, thus not providing the woman concerned with the information which could have led to the decision to interrupt the pregnancy.

A number of decisions have been adopted by the Spanish courts which concern the right to religious conscientious objection in the context of employment relationships. In a judgment concerning a Seventh Day Adventist who refused to work on Saturdays, the Constitutional Court noted that religious conscientious objection may not be invoked in order to modify unilaterally the existing contractual relationships with the employer (STC 19/1985, of 13 February 1985).

In another case, the Constitutional Court agreed that schoolteachers may have to comply with the educational doctrine of the institution in which they teach, and may not attack that doctrine in the context of their employment – although, at the same time, the Constitutional Court noted that any disagreement of the teacher with that doctrine would not as such justify his or her dismissal, unless this disagreement is expressed publicly, thus creating an obstacle for the school to the dissemination of its message (STC 47/1985, of 27 May 1985). The Constitutional Court also stated, in another case, that public servants may not always br authorized to invoke their conscientious objection to refuse to fulfil certain duties, as their position is not similar, for instance, to that of medical practitioners (ATC 135/2000, of 8 June 2000).

Moreover, specific legislations adopted by the Autonomous Communities recognize explicitly, in different contexts, the right to conscientious objection, in particular on religious grounds.32 Thus for instance, the Law 1/2003 of 28 January 2003 on the rights and information of the patient in the Community of Valencia (Ley 1/2003, de 28 de enero, de la Generalitat, de Derechos e Información al Paciente de la Comunidad Valenciana (DOGV de 31 de enero)), while it recognizes the right for each patient to adopt a ‘life will’ according to which he or she may express the will not to be artificially kept alive in certain circumstances where life-saving medical treatment would have to be delivered, also allows for a conscientious objection clause benefiting health care practitioners (Article 17 (2)), which they may invoke in order not to have to be instrumental in executing that will. However, this provision also provides an obligation for the public administration, where such conscientious objection is raised, to adopt the necessary measures to ensure that the will of the patient is respected. This implies in practice that another health care practitioner must be available to execute the will of the patient having drafted a ‘life will’, and that it is the duty of the public administration to ensure this availability.

Similarly, the Community of La Rioja adopted the Law 8/1998 on 16 June 1998 on pharmacologists (Ley 8/1988, de 16 de junio, de ordenación farmacéutica de la Comunidad Autónoma de La Rioja (BOLR de 20 de junio)), which recognizes the right to conscientious objection of the pharmacologists in the fulfilment of their professional duties, unless the exercise of this right would threaten the health of the patient (Article 5 (10)). The 2000 Statutes of the Professional Order of Pharmacologists in La Rioja, which state that each pharmacologist exercising his or her right to conscientious objection, must ensure that the patient will not thereby be deprived of the assistance he or she requests (Article 38 (10)), should be read in accordance with that law.

A similar legislative framework regarding pharmacologists has been adopted by Cantabria, again limiting the right to conscientious objection of pharmacologists to situations where this does not threaten the right of the patients (Ley de Cantabria 7/2001, de 19 de diciembre, de Ordenación Farmacéutica de Cantabria (BOC de 27 de diciembre)). Finally, health care practitioners are recognized a right to religious conscientious objection under the Statutes of their Professional Orders, but this right may only be exercised in accordance with the Constitution and the Code of Deontology, implying in particular that its exercise may not threaten the right to health of the patient.

In the United Kingdom, the right to religious conscientious objection is recognized in specific laws adopted in areas where it might be invoked (the same holds true of other Member States, such as e.g. the Netherlands). The British Abortion Act 1967 permits doctors and nurses to refuse to participate in terminations but obliges them to provide necessary treatment in an emergency where a woman’s life is threatened. Furthermore this exemption has been interpreted as covering only the administration of the treatment so conscience could not be invoked in order to refuse to give advice or perform various participatory steps, including the signing of the certificate required from a medical practitioner before an abortion can occur (Janaway v. Salford Health Authority, 1988). Government guidance has indicated that the exemption should apply to ancilary staff involved in the handling of fetuses and fetal tissue and that medical students should be able to opt out of witnessing abortions. It should also be noted that the British Medical Association (the body representing doctors) expects doctors with a conscientious objection to the prescription of contraceptive devices to refer the patient to another doctor willing to do so. It also would expect doctors with a conscientious objection to the withdrawal of treatment on moral rather than clinical grounds to be moved to other duties without being marginalised but there is no specific legal protection for this.

Other examples of the right to conscientious objection being recognized are the Human Fertilisation and Embryology Act 1990, which provides a right of conscientious objection to participation in technological procedures to achieve contraception and pregnancy; the Gender Recognition Act 2004, which provides that an Anglican clergyman or a clerk in Holy Orders of the Churc of Wales are not obliged to solemnise the marriage of a person if it is reasonably believed that the person’s gender has become the acquired gender under the Act; or the Education Reform Act 1988, which allows the parents of a child at a maintained school (i.e., one receiving funding from the State) to withdraw him or her from its acts of collective worship and from any day exclusively set apart for religious observance by the religious body to which the parents belong.

In Austria, the right to refuse to perform military service and to opt instead for civilian or community service is guaranteed as a constitutional right in Article 9a para. 3 of the Austrian Constitution and sect. 2 of the Civilian Service Act 1986 (Zivildienstgesetz, BGBl. No. 679/1986 as amended). In Cyprus, Article 10 of the Constitution refers to service exacted instead of compulsory military service by conscientious objectors (see also Decision of the Ministerial Council (Number 141) published on 9.11.2001). The right to conscientious objection towards military service on ethical, moral, humanitarian, philosophical, political or religious grounds was further recognized in the National Guard Law L. 20/1964 as amended by L. 2/1992.

In Denmark, see the Consolidated Act on Compulsory Military Service (Værnepligtsloven, Bekendtgørelse af værnepligtsloven LBK nr 470, of 17.6.2002), and Consolidated Act on Conscientious Objection to Military Service (Militærnægterloven, Bekendtgørelse af lov om værnepligtens opfyldelse ved civilt arbejde LBK nr 1089, of 23.12.1998).

In Germany, Article 4 para. 3 of the Grundgesetz guarantees that no person shall be compelled against his conscience to perform military service involving the use of arms. In Hungary, mandatory military service has been abolished since 1 January 2005 : the Parliament adopted a new act on national defence (Act No. CV of 2004 – 2004. évi CV. Törvény a honvédelemrl); prior to this change the right to conscientious objection with respect to armed military service was recognized under Article 70 of the Constitution. In Italy, the right to religious conscientious objection has been recognized by the Constitutional Court as a limit of the duty to defend the homeland, which imposed by Article 52 of the Constitution.

Moreover, Art. 4 of the 1984 Accord supplementing the Agreement of 1929 envisages a regulation (similar to another already included in the Agreement of 1929) which allows conscientious objection to military service by the clergy and religious Catholics. This Accord, referred to above, was approved and made executive with Law 121 of 25 March 1985, bearing the ratification and execution of the agreement with supplementary protocol signed in Rome on 18 February 1984 which modified the Lateran pact of 11 February 1929 between the Republic of Italy and the Holy See.

A similar provision on conscientious objection exists in Art. 6 of the agreement between the Republic of Italy and the Italian Union of Christian Churches of Seventh-Day Adventists, approved and executed with Law 516 of 22 November 1988. Finally, since 1972, the law recognizes conscientious objection to the duty of performing military service and sets forth that conscientious objectors are still obligated to perform civil service according to the regulations under law 230 of 8 July 1998: this alternative civil service falls under a broader national civil service programme, regulated by law 64 of 6 March 2001. However, Military service is no longer obligatory in peace time as of 2005 pursuant to law 226 of 23 August 2004, after the armed forces for national defence were transformed by law 331 of 14 November 2000 into forces comprised in peace time of volunteer personnel.

In Spain, the right to conscientious objection to military service is recognized in Article 30.2. of the Constitution; however, since compulsory military service has now been abolished, this provision has no reason to be invoked anymore. Similarly in the Netherlands, the right to conscientious objection to military service is recognized in Article 99 of the Constitution; however, since compulsory military service has now been abolished, this provision has no reason to be invoked anymore. See also, generally, the Recommendation No. R(87)8 of the Committee of Ministers to the Member States of the Council of Europe regarding conscientious objection to compulsory military service ; Recommendation 1518 (2001), ‘Exercise of the right of conscientious objection to military service in Council of Europe Member States’, adopted by the Standing Committee, acting on behalf of the Parliamentary Assembly of the Council of Europe, on 23 May 2001 (see Doc. 8809, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Marty); the Resolution on conscientious objection in the Member States of the Community adopted by the European Parliament. Reference can also be made to the Resolution adopted by the Commission on Human Rights on 8 March 1993 concerning conscientious objection to military service (doc. E/CN.4/1993/L.107 of 8 March 1993: ‘The role of youth in the promotion and protection of human rights, including the question of conscientious objection to military service’)




14 Equally significant, especially considering the context in which the Network has been requested an opinion on the issue of the exercise of the right to religious conscientious objection, is the example of Poland. That example is referred to hereunder.

15 Arrêté royal n° 78 relatif à l’exercice des professions des soins de santé (Moniteur belge, 14 .11.1967, errata Moniteur belge of 12.06.1968). This regulation has been modified on many occasions since it was initially adopted.

16 The Law of 22 August 2002 on the rights of the patient does not explicitly state that the medical practitioner consulted may refuse to inform the patient about certain questions (such as, for instance, contraception, or abortion, or euthanasia) on religious or ethical grounds. See Loi du 22 août 2002 relative aux droits du patient (Moniteur belge, 26.9.2002), Art. 7 § 1er : ‘Le patient a droit, de la part du praticien professionnel, à toutes les informations qui le concernent et peuvent lui être nécessaires pour comprendre son état de santé et son évolution probable’.

17 Moniteur belge, 5.4.1990.

18 Art. 348, al. 2, 6° of the Penal Code states : ‘Aucun médecin, aucun infirmier ou infirmière, aucun auxiliaire médical n’est tenu de concourir à une interruption de grossesse. La médecin sollicité est tenu d’informer l’intéressée, dès la première visite, de son refus d’intervention’.

19 Moniteur belge, 22.6.2002.

20 Article 14 of the Law of 28 May 2002 states : ‘Aucun médecin n’est tenu de pratiquer une euthanasie. Aucune autre personne n’est tenue de participer à une euthanasie. Si le médecin consulté refuse de pratiquer une euthanasie, il est tenu d’en informer en temps utile le patient ou la personne de confiance éventuelle, en en précisant les raisons. Dans le cas où son refus est justifié par une raison médicale, celle-ci est consignée dans le dossier médical du patient. Le médecin qui refuse de donner suite à une requête d’euthanasie est tenu, à la demande du patient ou de la personne de confiance, de communiquer le dossier médical du patient au médecin désigné par ce dernier ou par la personne de confiance’.

21 Loi complétant la loi du 28 mai 2002 relative à l’euthanasie par des dispositions concernant le rôle du pharmacien et l’utilisation et la disponibilité des substances euthanasiantes, Moniteur belge, 13.12.2005. The euthanazing drug is delivered not directly to the individual patient, but to his or her doctor, who will perform the euthanasia.

22 According to Article 3bis of the Law of 28 May 2002, inserted by the Law of 10 November 2005 : ‘Le Roi prend les mesures nécessaires pour assurer la disponibilité des substances euthanasiantes, y compris dans les officines qui sont accessibles au public’.

23 Lov om registreret partnerskab LOV nr. 372 af 07/06/1989 [The Act of Registered Partnership nr. 372 of 07/06/1989].

24 In addition to the normal rules for marriages the following conditions for registered partnership apply: one of the persons must have permanent address in Denmark and Danish citizenship or, both persons must have had permanent address in Denmark in the two previous years before the registration; citizenship and in the following countries is accepted as being equal to having Danish citizenship: Finland, Norway, Sweden, Iceland and The Netherlands. Moreover, according to Section 4 of the Act including, these exceptions concern in particular : adoption; special rules concerning one part of the marriage based on gender alone; provisions in international treaties regarding marriage require the other contracting parties’ consent to also cover same-sex marriage.


26 Bekendtgørelse 1969-12-15 nr. 547 om vielse inden for folkekirken. According to section 16(1) of the Danish Formation and Dissolution of Marriage Act, a church wedding may take place in
1) the Danish National Evangelical Lutheran Church,
2) the recognised religious communities, and
3) other religious communities with clergymen who have been authorised by the Minister for Ecclesiastical Affairs to perform weddings.

27 See, e.g., Supreme Administrative Court 17 January 1977 No. 107 (assistant doctor working at the department of obstetrics and gynaecology of a public city hospital having refused to perform abortions, with reference to religious and ethical convictions : the Supreme Administrative Court upheld the dismissal of the doctor by the city, as it considered that the city had not acted ultra vires) ; Supreme Administrative Court 7 November 1977 No. 4466 (private pharmacist having refused to provide and sell contraceptive pills to customers : the Court confirmed that the pharmacist was obliged to sell contraceptives, although it annulled the decision of the Central Medical Board to cancel the licence of the pharmacist, due to the failure of the Board first to give a clear order to sell the pills in question).

28 Niklas Bruun – Olli Mäenpää – Kaarlo Tuori, Uusi virkamiesoikeus, Helsinki 1988, p. 121. The authors referred to an unpublished licentiate thesis by Martin Scheinin (1987) where these and other criteria were discussed as a part of a general theory on resolving conflicts between a person’s conscience and legal duties.

29 Government Bill No. 309 of 1993, page 55.

30 Section 11, subsection 2, of the Finnish Constitution (1999).

31 See e.g. Federal Administrative Court, judgment of 18 June 1997, BVerwGE 105, 73 <77, 78>.

32 It may also be noted that the Organic Law 2/1997 on the conscience clause of professional in the information sector (Ley Orgánica 2/1997, de 19 de junio, reguladora de la cláusula de conciencia de los profesionales de la información (BOE del 20 de junio)) provides that in that sector, employees may rescind their relationship to the employer where the general orientation or the ideological line of the employer is changed. This legislation aims at protecting the editorial independency of employees in the media sector, while organizing the conciliation between the freedom of expression of the individual employee with that of the employer. However, this provision will typically not be invoked for religious reasons; rather, they concern the philosophical or ideological beliefs of the employee.


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