Reply to Rob on Conscience

Rob, if you have another look at what I said about those justices of the peace, you'll see that I actually didn't state a position on the question that you and Steve Shiffren have taken opposing sides on. I was responding to what Michael Perry may (though I'm not sure) have been suggesting or asking in his very brief comment on the article he posted about the racist Louisiana justice of the peace:

"Interracial marriage.  Same-sex marriage.  Hmm."

My point was simply that someone who believes, as I do, that a racist justice of the peace ought not to be able to stay in his job if he refuses to perform marriages for interracial couples, is not logically committing himself to the proposition that officials who refuse as a matter of conscience to perform marriages for same-sex partners ought not to be able to keep their jobs.  That point is consistent with your being right, just as it is consistent with Steve's being right, on the issue that divides the two of you.  It is also consistent with your both being wrong on the issue, at least insofar as the reasoning is concerned.  As much as I would like to seize an opportunity to agree with Steve, this is not my chance.  I don't find the argument for his unconstitutional condition claim persuasive.  But I'm not persuaded by your argument either (though I am certainly open to hearing more about it).

In any event, the debate is, in my opinion, academic (in the pejorative sense).  If the struggle over marriage eventually results in the abolition of the conjugal conception of marriage in our law, then sooner or later (probably sooner) any significant conscience protections for dissenters from the revisionist understanding of marriage will be eliminated.  Those who cling to belief that marriage is, in truth, a one-flesh union of sexually complementary spouses, and that same-sex marriages, etc. are therefore not marriages and should not be recognized or treated as such, will themselves be treated in the way that we treat racists and other bigots.  They will be subject to legal limitations and disabilities similar to those that we impose on people who act on racist beliefs in various domains of public and quasi-public life.  I suspect that in many jurisdictions, proponents of redefining marriage will offer some fairly robust sounding conscience and religious liberty protections in order to get the legislation they are supporting enacted.  (That happened in Vermont.)  Those protections will come under attack, however, and will erode rather quickly once the new definition of marriage is firmly in place.

To my mind, then, the real debate is about whether to abolish the conjugal conception of marriage.  The conscience and religious liberty issues are, I believe, for the most part a side show.  The fate of conscience and religious liberty protections for believers in conjugal marriage is tied to the fate of marriage itself.  If marriage is redefined, they will not find themselves free to live by their beliefs without incurring legal disabilities.  I hope that people will not naively accept the assurances they are too often given that there will be "no consequences for them."  Chai Feldblum famously said (contemplating what she candidly ackowledges are the vast areas in which the agenda she passionately supports comes into conflict with the consciences and religious freedom of Catholics, Evangelicals, Orthodox Jews, and others) that she "[has] a hard time coming up with any case in which religious liberty should win."  And Professor (and now EEOC Commissioner nominee) Feldblum is regarded by some on her own side as a "moderate" because she thinks that it is important to show a "respectful awareness" of religious liberty claims, even when overriding them.  Of course, Professor Feldblum and I are poles apart on the relevant normative questions.  But if we rephrase her claim to make it a descriptive one, I don't disagree with it.  If marriage is redefined, I have a hard time coming up with any case in which I think that conscience and religious liberty claims will win.  Place not thy trust in promises of conscience protection.