A response to Prof. Cathy Kaveny’s thoughts on conscience protection

 

 

I take this opportunity at the outset of this post to thank Michael Perry for drawing our attention to the two interesting, important, and thought-provoking Commonweal posts of Prof. Cathy Kaveny on conscience protection. Clearly, this issue of conscience protection will be with us for some time. Evidence of this is found in the well-attended conference at Fordham in which Rob Vischer participated and reported elsewhere on these pages of the Mirror of Justice. Today, the emphasis on conscience protection appears to concentrate on those in the professions dealing with health care, e.g., doctors, nurses, medical technicians, and pharmacists. But we need to keep in mind that anyone from the renter of an apartment to anyone who enters the public realm in some fashion that deals with the controversies of the day—abortion, same-sex marriage, military service, scientific research, etc.—may find it necessary to claim conscientious objector status and protection to whatever the state and those who wield its power require with regard to these and other controversies that present moral issues.

 

As theologian-lawyer/lawyer-theologian, Cathy has presented us with some important issues to consider. A fundamental issue that her thoughtful postings present deals not so much with the idea of conscience protection as with the breadth of conscience protection. I would like to offer the following thoughts on this issue and those which may be related to it.

 

As the Mirror of Justice is a web log dedicated to the development of Catholic legal theory, I submit that it is essential for us to consider the question of conscience from how the Church considers and defines it. Most people, certainly in the western legal cultures, would agree that there is a need to protect conscience; however, it is essential to understand what conscience is and, just as importantly, what it is not in so far as what must be protected when the claim to conscientious objector status is claimed.

 

For many, conscience is that voice within us that directs our thoughts, words, and deeds. It helps most persons to distinguish between what is to be done and what is to be avoided. For many, but not all, conscience is formed by a moral evaluation of what is appropriate and what is inappropriate in thinking, speaking, and acting. But if conscience is only subjectively determined, the moral considerations that may accompany its exercise are most likely subjectively determined as well. Private morality is not, in all cases, a bad thing. But to those persons sympathetic to the perspective of Catholic thinking and the development of legal theory that accompanies it, the moral evaluation that molds conscience cannot be restricted to this “inner voice” and nothing more. For the Catholic, conscience must be rooted in that which is beyond and transcends the restrictions of the subjectivism that is characteristic of the “inner voice” that is tied to nothing beyond the ego.

 

In the Catholic context, conscience is that part of human nature that takes the individual beyond the subjectively determined and relates the person and his or her thoughts, words, and deeds to the transcendent and objective moral order. There are some, perhaps many, who would be skeptical of this claim. But the Catholic needs to be remembered that he or she is in communion with God; is a disciple of Christ through baptism; and, is united with the Body of Christ, His Church. Therefore, he or she should not join the ranks of the skeptics but, rather, acknowledge that the claim I present, which is not to say that it is only my claim, takes us closer to the truth of what conscience should dictate and how it should be protected. For this truth leads us to Truth—God—who is the source of the transcendent and objective moral order that is at the base of the well-formed conscience.

 

So, when we come to some of the fascinating scenarios posed by Cathy about how any person should go about making individual ethical choices, the question of how far should conscience be protected must be confronted. The approach to responding to this in the realm of Catholic legal theory, I suggest, is non-partisan in party politics but is partisan when viewed as being Catholic or not. For me and the position that I must present, it is irrelevant if the subject under consideration deals with abortion rather than contraception, or contraception rather than abortion, etc., etc. If the person who claims conscientious objector status to either (or both) of these “services” does so by relying on moral principles that are not simply from the “inner voice” but from the objective standard that relies on the rigorous process of right reason, should not his or her claim be protected? I think so, if one relies on the rationale proposed by the Church concerning these and related matters.

 

I share Cathy’s view that it is mistaken to treat the controversies with which conscientious objector status is immersed as simply partisan skirmishes “accompanying a shift in political power.” As she further indicates, it is essential to grapple with the underlying moral and political issues, but it is also vital to keep in mind that the moral has to be distinguished from the political. Otherwise, the moral may well be influenced by the political. In the present age and probably beyond, it is or will be much more difficult, and sometimes impossible, for the moral to influence the political. If we think too much like lawyers and not enough like Catholics who are lawyers, we become susceptible to being swayed by the political currents that take our country, our civilization, our world adrift.

 

Thus, conscience well-formed and why it must be protected is, for the Catholic, always crucial. The Catholic perspective may, Deo gratias, intersect with those held by persons of other religious persuasions or persons with no religious views, but there is no guarantee that this will be the case.

 

I concede that there are many takes on conscience. Nonetheless, conscience consistent with the manner of which I speak is not merely the position of a person who does not like what is going on and is unwilling to accept it on the basis of what that person believes to be, in good faith, immoral or evil or politically unacceptable. Conscience is much more.

 

The fact that many views of “conscience” may exist in our culture and in our country has been intensified and reinforced by Justice Kennedy’s regrettable dicta in Casey contained in the “mystery of life” passage as I have argued here on numerous occasions. The law may not be designed to implement morality into all its content. But, by the same token, the law must never become an instrument to deny the legitimacy of the moral view, as defined by the objective standards explained by the Church, held by those who disagree with the law in a given instance. Disagreement by itself is not the act of a brigand. It may be argued that the society and the rights of others are harmed if this conscience were protected. But is this really true?

 

Really?

 

My dear friends of MOJ, I deny that this is the case. There will continue to be those who champion abortion, same-sex marriage, embryonic stem cell procedures, and whatever other controversial idea and its practice that may come along one day. It is evident that for every doctor, nurse, medical technician, pharmacist, clergy member, justice of the peace, lab technician, photographer, land lord, etc., etc., etc. who objects to engaging in the controversial decisions of the day to which he or she objects on the grounds of conscience, well-formed, there will be an opposing member of the same category who will comply, perhaps even with enthusiasm, with whatever is requested and permitted by the law. The undue burden is not on the woman who wants an abortion and is refused it by a particular doctor, clinic, or hospital. The burden that is undue is, rather, the estate of the person who chooses not to participate in this and other controversial practices that the law permits or even encourages but is, by objective standards, morally objectionable.

 

Once the truth of this is realized by us, by our society, and by our society’s legal institutions, we may no longer find it necessary to argue about conscience protection and how far it should apply. The decision not to do something objectionable because the well-formed conscience says that it is so may be personal. But when all is said and done, this decision does not prohibit another who disagrees with it from going to those who will comply with their requests or demands. To me, protecting the right of conscience well-formed is a win-win situation: those who choose to engage in the controversial and what others deem morally objectionable are entitled to do so because the law says they may; but, those who choose not to participate in the controversial because of what their well-formed conscience instructs can go on with the peace of mind that their well-formed conscience shall not be compromised.

 

We live in a world and political culture which say that error has rights—even though only people can have rights. So, people with erroneous views have rights to proclaim and exercise them. But this is not to suggest or require that those individuals who choose not to participate in these errors have no rights either.

 

RJA sj