Kaveny on conscience

Thanks to Michael for flagging Cathy Kaveny's column and post on conscience.  They are both well worth reading.  Cathy raises three areas that warrant more discussion:

First, Cathy makes a very important point on our tendency to view conscience through the prism of the underlying issue, rather than as a freestanding, principled commitment:

Those claiming conscience-clause protections must ask themselves a basic question: Am I committed to protecting conscience for its own sake, or simply because it’s the best fall-back option in what I consider to be a fundamentally immoral, even evil, legal and political situation? Many prolife arguments for abortion conscience clauses take this form: “A decent society ought to ban abortion, but at the very least, it ought to protect those morally courageous doctors who refuse to perform it.” This appeal to conscience is provisional. When we are in political power, we will try to ban abortion, when we are out of power, we will claim the protections of conscience.

If our commitment to conscience only extends to the issues we lost on and is not anchored to a broader framework, the other side can easily extinguish our conscience claims when they don't share our view on the importance of the particular issue.  Occasionally I hear arguments in favor of conscience protection based on the belief that the underlying issue comports with the natural law.  That argument is a non-starter politically, and it is also inconsistent with much of the Catholic intellectual tradition's understanding of conscience.

Second, Cathy makes a point about the pre-Vatican II Church's view of conscience that might (unintentionally) give a false impression.  She writes:

In the pre-Vatican II Church, conscience was not the trump–religious truth was. Catholics should receive the protections of conscience clauses when in the minority because, well, the Catholic religion was true.  What about the consciences of non-Catholics when Catholics were in the majority?  Not so much–error has no rights.

I won't quibble with the notion that the Church's view of political authority did not always provide ample space for conscience (to say the least), but it is important to recognize that, throughout the Church's history, respect for conscience has not turned on conscience's embrace of Truth.  Augustine is a notable exception, but from Paul ("do not allow this liberty of yours to be a stumbling block to the weak"), to Abelard (defining sin as "consenting to what one believes should not be consented to"), to Aquinas ("every will at variance with reason, whether right or erring, is always evil"), there is a subjective dimension to our respect for conscience. 

Third, Cathy expands the potential scope of conscience with a couple of provocative questions:

To what degree does making a claim of conscience in a pluralistic society involve a reciprocal obligation to respect other people’s consciences on the same issue? If I claim protection as a pro-life doctor not to be interfered with in my decision not to perform abortions because I have concluded conscientiously that they count as homicide, to what degree to I owe respect to your decision as a pro-choice doctor to perform abortions because you have conscientiously concluded that they are not homicide?

The reflexive answer to Cathy's questions is likely to be, "Well, not being allowed to do something that I conclude is morally permissible is not the same as being required to do something that I conclude is morally impermissible."  I personally think it's morally permissible to jaywalk, so does a city ordinance prohibiting jaywalking violate my conscience?  Let's make it a little tougher: what if I'm prohibited from doing something that I believe is morally required of me?  If the state prohibits me from attending mass, that's a violation of my religious liberty, of course, but does it also violate my conscience?  What if I'm a pro-choice doctor and my conscience compels me to do whatever I can to keep women away from "back alley" abortions -- does an abortion ban violate my conscience?

Articulating the boundaries of conscience is no easy task, and I don't purport to have all the answers, but two things are fairly clear to me.  First, whether or not we are prepared to count a state prohibition of action that I find morally permissible to be a "violation" of my conscience, it must be within the scope of concern for those who take the liberty of conscience seriously.  Conscience is a set of moral  convictions in dialogue with our will -- should the state's deference to conscience only encompass cases where the dialogue reaches a "no" answer ("I may not do this"), not a "yes" answer ("I may do this")?  The personal cost of having my "no" answer trumped by state power is higher than having my "yes" answer trumped, but the latter can be significant as well, especially as the "may do" gets closer to "must do."  And while an ordered society would cease to exist if every act deemed morally permissible by an individual was given state license, it seems to me that the cost to conscience in those cases needs to be part of the conversation.

Second, the conscience boundaries are already blurring, and SSM/pro-life concerns are driving much of that blurring.  Many of the conscience claims in professional contexts look less like conscience as negative liberty ("the state cannot force me to do something which I find morally impermissible") and more like claims of positive liberty ("The state should empower me to act on my conscience").  Especially applied to non-state parties, it starts to look more and more like an affirmative claim to be empowered in my choice of profession, not just protected against state coercion -- e.g., would it violate my conscience if the state won't hire me as an executioner if I refuse to participate in executions?  Five years from now when everyone knows that a Vermont justice of the peace is required to perform SSM, will it violate my conscience not to be hired as a justice of the peace? Or would it violate my conscience not to be hired as the night receptionist at a hotel in a state that prohibits discrimination against same-sex couples if I refuse to register same-sex couples as guests?

There are lines to be drawn here, to be sure, but the lines may not be obvious, and they are shifting. I favor taking a broader view of when the liberty of conscience is implicated, even if not all implications should be of equal concern.  Discovering the importance of liberty of conscience on an issue by issue basis (as some do with SSM or abortion) does not give much protection because it ultimately will not be persuasive to those who have a different view of that particular issue.