The state's obligation to protect conscience

Over at the always interesting Public Discourse, Christopher Tollefsen has posted a short essay explaining why the government has a duty to protect citizens' consciences, and why President Obama thus should not repeal the Bush Administration's rules forbidding recipients of federal funding from discriminating against employees based on their moral or religious objections to providing certain services or procedures.  He writes:

[T]he protection of the integrity of persons from threats to those judgments of conscience that are articulated essentially in the negative—that I must not do such and such—has a claim to being among the fundamental purposes of the state in a way that the provision of benefits does not. It would, again, be a reversal of the normative order of priorities to compel violations of conscience for the sake of some otherwise foregone benefits.

But in at least some of the actions under consideration in the conscience regulations, health care professionals with certain moral convictions simply could not, consistent with those convictions, participate under any circumstances in the actions in question. A doctor who genuinely believes that abortion is an intentional killing of the innocent, and is always and everywhere morally wrong, cannot, consistently with that judgment, participate in an abortion procedure. Likewise, doctors who believe sterilization to be a form of mutilation simply cannot participate in such surgical procedures.

In these respects, then, were the new understanding of the conscience regulations to involve any weakening of the protections for healthcare professionals who refuse to participate in such procedures, they would constitute a fundamental injustice; a failure to protect against threats to the moral integrity of a large class of persons.

I often wonder in these discussions if much of the heavy lifting is being done, not by our conception of conscience in general, but by our own support for the particular conscience claim at issue: here, the sanctity of life.  What if, instead of talking about a physician forced by an employer to perform an abortion or provide the morning-after pill, we were talking about a Muslim taxi driver who refused to pick up a passenger carrying a bottle of wine, or a Muslim cashier who refused to scan pork products, or an evangelical bus driver who refused to drive a bus with an advertisement for a gay-lifestyle magazine?  Would we, with the same confidence, proclaim that the government's failure to forbid the employer from taking action against those employees was "a fundamental injustice?"  If so, are we really ready for the resulting transformation of our legal system and its definition of "reasonable accommodation?"  If we're not ready to extend liberty of conscience to the taxi drivers and cashiers, why not?  Is it because sanctity-of-life issues are more deserving of legal protection?  Is it a case of professional hierarchy -- physicians and pharmacists deserve moral integrity, but taxi drivers and cashiers don't?  Or is it something else?

Note that we are not talking about the need for self-restraint by the government when it comes to honoring a citizen's conscience, to which the traditional understanding of liberty of conscience referred.  We're talking about bringing government power to bear against non-state entities (including institutions that may seek to cultivate distinctive moral identities of their own) in order to ensure that a citizen can shape her professional role in a way that is consistent with conscience.  To be clear, I am all in favor of encouraging employers to be deferential to conscience.  But the notion that a fundamental responsibility of government is to ensure that citizens can enjoy full moral integrity in the workplace represents a potentially expansive vision of state power and a corresponding threat to intermediate structures.