A Few More Thoughts on Conscience Protection

I appreciate Cathy Kaveny's column and post and Rob's further post on conscience.  A few thoughts.

First, Cathy and Rob are absolutely right to emphasize that a commitment to conscience must be principled, not simply special pleading for, or a second-best means to advance, one's own views.  That doesn't mean, of course, that one is obliged to support every assertion of conscience with which one disagrees.  All such assertions are limited by the need to protect the interests of others, and one can take conscience seriously while still deciding in a given case that protecting it would impermissibly violate another's interest.  In particular, one can quite defensibly say that the question whether another human being is entitled to the most basic protections, including life, cannot be governed by individual conscience.  So to me, a pro-life advocate is not at all necessarily inconsistent in rejecting conscience claims to commit abortions while supporting conscience claims to refuse to perform them.  By contrast, I think, we are increasingly coming to see that if we take claims of conscience seriously and require that state-imposed harms to conscience be justified by palpable, non-speculative social concerns, then it is going to be difficult to justify a great many forms of state discrimination against same-sex relationships.

Second, there are indeed important differences in the degree to which an objector would be facilitating conduct s/he opposes; and only with some showing of closeness can society recognize a claim of conscience (is the night receptionist at a hotel really personally involved in the conduct of couples using the rooms?).  But I do think that (on a distinct though related question) we ought to take seriously the burden on conscience that occurs when people are excluded from a profession or occupation because of a state-imposed demand.  As Doug Laycock has pointed out (in this book), historically a central violation of religious liberty under the English establishment was the test oath, the state exclusion of Catholics and other dissenters from a range of occupations, "including positions of responsibility in the civil and military service, solicitors, barristers, notaries, school teachers, and most businesses with more than two apprentices."  We can't simply say that Catholics voluntarily gave up their rights to participate in those occupations by remaining Catholics, or (in Rob's words) that Catholics were "making an affirmative claim  to be empowered in [their] choice of profession."

Admittedly there's some difference when the exclusion is based on particular conduct rather than simple religious identity.  But the lesson still remains that exclusions from a range of occupations--and today's nondiscrimination requirements can indeed affect a wide range--will burden individuals and cost society the contributions of significant groups of talented, conscientious people.  We are under some obligation, I think, to ask whether a rule that effectively excludes a set of conscientious objectors from a profession or occupation is really necessary (as is obviously the case with a rule requiring executioners to perform executions).  If it's not necessary, it may suggest a hostility to the group's beliefs or at least a callous indifference.

That brings up a third point.  Cathy says, and I agree, that "sound legislation needs to take into account the interests of vulnerable third parties."  But the flip side, which she doesn't mention, is that when third parties are not vulnerable or significantly affected, no strong reason exists to override the prima facie value of consicence.   the majority of the controversial recent cases about same-sex couples -- the New Mexico wedding photogapher, the Christian running small rental properties, Catholic Charities' banishment from adoptions in Massachusetts -- there was not the slightest showing that same-sex couples had any difficulty finding another provider.  A significant part of the motivation for fining or excluding those objectors, I think, has been to prevent offense to others (not material harm), or for the state to express disapproval of the objector's belief -- which makes these cases look more and more like the English test-oath exclusions.

Running through many of these points -- and necessary to make sense of them -- is a prima facie distinction between burdens on conscience from the state and from private parties.  Except in cases of market power, private parties usually cannot prevent others' access to goods, services, or occupations; in a market society, there is usually another willing provider.  But the state can shut down access altogether.  We could implement this distinction by eliminating the laws against private discrimination; but because those laws don't always affect conscience, and experience has shown the laws are sometimes necessary, they can be justifiable as a default.  Then the way to balance conflicting claims of conscience is to have non-discrimination laws with meaningful exemptions that presume conscience is protected except in cases where it would choke off access.