Accommodating Conscience

Notre Dame law prof Julian Velasco responds to my comments on conscience at the cash register:

Let me start by saying that I am a big believer in freedom of conscience.  However, to a large extent, one has to be willing to suffer the consequences of one's moral convictions.  The law should probably make reasonable accommodations, but private parties should not be required (or even expected) to do so.

Clearly, no law should require anyone to handle pork.  However, employers should not be required to make an accommodation for scruples, either.  Of course, employers may choose to make accommodations on their own -- and that's wonderful.  (However, reassignment seems a better course than forcing customers to scan their own groceries.  Just as the employee's scruples should not be forced upon the employer, neither should it be forced upon the customers.)  Similarly, anyone can start their own business and refuse to trade in pork; customers who want pork can go elsewhere.  But one who does not want to handle pork probably should not expect to be able to be a cashier at a grocery store.

I *think* my principle is generalizable.  Thus, the law should not force a pharmacy to carry abortifacients (or other products).  The pharmacy (owner) should be able to decide whether or not it chooses to carry those products.  The employee should take that into consideration when considering employment at a given pharmacy.  A pharmacy that wishes to sell abortifacients should not be required to make an accommodation for pro-lifers any more than a pharmacy that decides not to sell abortifacients should allow a pro-choicer to circumvent the pharmacy's policy.  (Of course, in both cases, the pharmacy should be free to make accommodations if it wishes to.)  And, of course, anyone that is unsatisfied with the local pharmacies' policies has the right to start a new business.

I can see why the law should make accommodations for conscience, but I don't see why private parties should be required to do so.

I agree that we should be more concerned with the state's intrusion on a person's conscience than a private actor's, but much of the law's work in maintaining space for conscience in the public sphere will have to enlist private actors in the effort.  Private employers hold too much power over the lived reality of conscience if they are not constrained by law; I'm not willing to entrust conscience completely to market forces.