Disciplinary liability for religious conscientious objection in the judicial function.

An analysis concerning the judicial refusal to perform same-sex marriages

Abstract

This document addresses the legal problem arising from the collision between the functional duty of a judge and his fundamental right to freedom of conscience and religion, specifically when conscientious objection is invoked on grounds of faith. This study analyzes the possibility that such conscientious objection may operate as a ground for the exclusion of disciplinary liability for

judicial officials. Jurisprudential positions of the Constitutional Court are contrasted, particularly Judgment T-388 of 2009 and Judgment C-728 of 2009. In order to provide critical distance, the case-law of the European Court of Human Rights (Eweida and Others v. the United Kingdom) and of the Inter-American Court of Human Rights is incorporated. The research delves into the implications of this «hard case» for the elements of the disciplinary offense, and argues that, in exceptional cases of invincible error, religious conviction may exclude culpability, without prejudice to the State's duty to guarantee access to justice.