Why the question of same-sex marriage sets an interesting precedent for bioethics...

Calls from the Vatican for civil servants to disobey a new law legalizing homosexual unions and giving the right of adoption in Spain to such "unions" have set and interesting precedent. On the one hand, responsibles of the Partido Popolar, have been rather hesistant to wholly support the initiative (read for instance the article here, where the Spanish leader of the PP, Mr. Mariano RAJOY did not fully endorse the mayors who announced that they would not "celebrate" such "marriages". On the other hand, a number of mayors of cities where the Partido Popolar rules have announced that they would not be obeying the new law.

The question of the objection of conscience is an interesting tool to question the legitimacy of some laws. However, I am not quite sure that it will succeed in this case. Besides the fact that many polls have indicated some degree of support for homosexual marriage in Spain, civil disobedience has some effect in reversing a tide when the consequences suffered by the disobedient citizen illustrate the injustice of the law he criticizes.

Here, there are no criminal law punishment foreseen for the civil servants who shall refuse to obey the law. The worst consequence might be the loss of their job - and yet, they may find another work at some point. It does not strike the minds as being truly scandalous and outraging - especially with the younger generations where relativism is a daily way of life.

I am not saying that the act is not worth of consideration, nor that it is useless. It may be a clamorous way of signifying to the public that perverting the spirit of marriage is not accepted by everyone. And for that to be truly efficient, mass demonstrations should follow, with outraged crowds demonstrating against the sanction taken. Then, there might be a sign that the hearts and souls have been touched by this courageous resistance.

There is one slight problem in the Spanish paradigm: one of the few parties opposing the law is growing more and more timid (you will have recognized the PP). If there is not a general and strong political initiative to follow up on popular reactions, then personal reactions are bound to have less echo....

But let us get forth to the core of my argument: why would this act of resistance set a precedent in bioethics?

Well, it is known that in some European countries such as Belgium and the Netherlands, euthanasia and stem cell researches have been authorised. Now, in the Netherlands, there has been a growing trend to consider euthanasia as a "right" (right "to die" for the patient, right to kill for the physician). Hence, some years ago, the Dutch Minister for Health Care had threatened to radiate definitively physicians who refused to organize the tranfer of patients wishing to be euthanized towards physicians ready to follow their "will".

On the plane of abortion, the European Court of Human Rights, refused some years ago the protection art. 9 (freedom of religion) of the Convention to pharmacists who had refused to sell contraceptives. The case was not even discussed on the merits, it was deemed unreceivable. You may read the case over here: Pichon & Sajous v./ France . The ratio decidendi may be found in these lines quoted from the case:

The Court would point out that the main sphere protected by Article 9 is that of personal convictions and religious beliefs, in other words what are sometimes referred to as matters of individual conscience. It also protects acts that are closely linked to these matters such as acts of worship or devotion forming part of the practice of a religion or a belief in a generally accepted form. (...)

However, in safeguarding this personal domain, Article 9 of the Convention does not always guarantee the right to behave in public in a manner governed by that belief. The word “practice” used in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief.

The Court notes that in the instant case the applicants, who are the joint owners of a pharmacy, submitted that their religious beliefs justified their refusal to sell contraceptive pills in their dispensary.

It considers that, as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.

The decision says a lot. While anybody may dissent or agree on the attitude of the two physicians as regards the sale of contraceptives (there is, in French law, a disposition which does not oblige pharmacists to sell abortive products), the Court has very strictly limited religious belief to the private sphere.

Thus, under the present case law, the Court would offer no protection to the mayors who would refuse "celebrating" same-sex "marriage". The interst of pushing the case of "homosexual marriage" before the ECHR might be in forcing the Court to reconsider the space it offers to religion in the public sphere.

There might be a drawback nevertheless: the Court might end up finding that when it is recognized by law, the "right to marriage" can be extended to homosexuals...

But then, it is up to each citizen to fight against dangerous deviations. The Court follows "public opinion" it is known (in a certain measure: it condemned measures against homosexuals on the basis of article 8 of the Convention - privacy - though there was widespread popular approbation for those laws). Why not to push forward "test cases", with a strong popular movement in favour of restricting controversial measures in the field of bioethics?

But it requires a strong mobilization, and it is fortunate that the Vatican seems to have decided to go on the offensive.