In Fall 2011, the Undergraduate Fellows enrolled in the Law, Religion, and Liberty of Conscience Seminar interviewed experts about the role of conscience in American life, law and politics. Below are some of their responses to the students' fourth question:
Many proponents of conscience-based exemptions accept that the state can legitimately impose upon certain kinds of refusals of service (e.g. a public accommodation cannot refuse services on the basis of race, religion, or ethnicity). Why should religious-based refusals gain special consideration?
Richard W. Garnett:
Religion-based requests for exemptions should be treated differently because (for better or worse) our Constitution singles out ‘religion’ for special protection.
Richard S. Meyers:
I think an important distinction here is that claims for conscience (or refusals, as critics of conscience like to say) are typically to an act (being forced to perform or assist in the performance of an abortion) and not to the characteristic of the person who is seeking the service (the race or religion or ethnicity of the person seeking the service). So a nurse who doesn’t want to assist in the performance of an abortion is not objecting to the person (they are not saying—I won’t assist in the performance of an abortion for a person in a disfavored racial or ethnic group), they are objecting to the act (the abortion) that the nurse regards as immoral.
Marc O. DeGirolami:
There are historical reasons for giving religious conscience special regard … Religious reasons have, again, historically, been among the most powerful sorts of reasons that people have for acting or not acting in certain ways. We might believe that we have progressed beyond giving religion special consideration, because we are post-religious, or because we are consumed by claims of equality. But if we are attentive to our historical traditions, we will be at least cautious about abandoning the special protection for religious conscience too readily. It is also given special constitutional protection (setting aside the disagreement noted above), so we would have to twist the language pretty severely to derive a general conscience exemption.
Thomas Berg:
Our constitutional tradition has long recognized religious freedom as a distinctive right, for several reasons. One is that by giving room to religious claims, the state acknowledges potential limits on its authority that may come from a source higher than human laws—a point of great theoretical and practical importance in limiting the power of government (as religious resistance to totalitarian governments this century has shown). Another cluster of reasons is that, as a category, impositions on religion have historically caused especially great suffering to individuals—in part because of their sense of violating a higher calling or duty—and have also caused especially intense conflict. Of course, these do not mean that religious conscience is unlimited. Nor does it mean that nonreligious claims of conscience should be ignored. But there are good reasons to protect religion distinctively.
Ira “Chip” Lupu
Frequently, there is no reason why religion-based refusals should be given any special consideration. Occasionally, there is such a reason. Again, context is everything.
Steven D. Smith
I'm afraid there's no “sound bite” answer to this one. But the summary would be that, historically, the freedom of conscience is a corollary to the classical "freedom of the church," and that both the church and the "inner church" of conscience were viewed as in some sense jurisdictions independent of the state's jurisdiction. An imperfect analogy would be to a foreign embassy: we don't impose our labor laws on a foreign embassy because, quite simply, we don't have jurisdiction there. The classical view has largely been forgotten, of course, but it hasn't been improved on.
Douglas Laycock
Freedom to exercise one’s religion can be overridden for sufficiently compelling government interests, and whether nondiscrimination laws present such an interest is a fairly debatable question. Often yes, especially in commercial contexts and where the religious saliency of the class or behavior is low; clearly no, in my view, inside religious organizations. And I think no in contexts where religious salience is high, such as marriage. But plainly, people disagree about these questions.
Ian C. Bartrum
The first good and easy answer is that there is explicit, express protection of religious freedom in the Constitution. So religion is special for just that reason. I do, however, think that difficult questions arise when religion comes into conflict with other constitutionally protected values—like Equal Protection. I think in those cases the competing claims of religion and EP have to be evaluated on a case-by-case basis. I have a short piece that is just about to come out at Northwestern, which argues that racial equality is an important enough value that it should trump religious liberty.
Robert Vischer I think the state has already overreached on some of these issues. I do think that religious commitment tends to produce a different level of conscientious objection than many non-religious objections because of both the depth and (perceived) objectivity of the underlying belief. I don’t think that’s always true, though. An even more obvious distinction, though, emanates from the First Amendment. A state that requires the Catholic Church to hire women as priests has blatantly violated the Free Exercise Clause. A state that requires the Jaycees to admit women has also infringed on their associational rights, but the constitutional violation is not as clear (though I would argue that it’s still there, even if the Supreme Court disagrees).
M. Cathleen Kaveny
I don’t think religiously based refusals should be exempted from basic norms of how we deal with one another—particularly institutions. So I would not support a religious hospital’s refusal to serve the adherents of another religion. Refusing service to people on a discriminatory basis is, however, different from refusing to provide a particular service to everyone. If a Catholic hospital let white women have abortions but not black women, or vice versa, I would not accept that claim.
Richard W. Garnett:
Religion-based requests for exemptions should be treated differently because (for better or worse) our Constitution singles out ‘religion’ for special protection.
Richard S. Meyers:
I think an important distinction here is that claims for conscience (or refusals, as critics of conscience like to say) are typically to an act (being forced to perform or assist in the performance of an abortion) and not to the characteristic of the person who is seeking the service (the race or religion or ethnicity of the person seeking the service). So a nurse who doesn’t want to assist in the performance of an abortion is not objecting to the person (they are not saying—I won’t assist in the performance of an abortion for a person in a disfavored racial or ethnic group), they are objecting to the act (the abortion) that the nurse regards as immoral.
Marc O. DeGirolami:
There are historical reasons for giving religious conscience special regard … Religious reasons have, again, historically, been among the most powerful sorts of reasons that people have for acting or not acting in certain ways. We might believe that we have progressed beyond giving religion special consideration, because we are post-religious, or because we are consumed by claims of equality. But if we are attentive to our historical traditions, we will be at least cautious about abandoning the special protection for religious conscience too readily. It is also given special constitutional protection (setting aside the disagreement noted above), so we would have to twist the language pretty severely to derive a general conscience exemption.
Thomas Berg:
Our constitutional tradition has long recognized religious freedom as a distinctive right, for several reasons. One is that by giving room to religious claims, the state acknowledges potential limits on its authority that may come from a source higher than human laws—a point of great theoretical and practical importance in limiting the power of government (as religious resistance to totalitarian governments this century has shown). Another cluster of reasons is that, as a category, impositions on religion have historically caused especially great suffering to individuals—in part because of their sense of violating a higher calling or duty—and have also caused especially intense conflict. Of course, these do not mean that religious conscience is unlimited. Nor does it mean that nonreligious claims of conscience should be ignored. But there are good reasons to protect religion distinctively.
Ira “Chip” Lupu
Frequently, there is no reason why religion-based refusals should be given any special consideration. Occasionally, there is such a reason. Again, context is everything.
Steven D. Smith
I'm afraid there's no “sound bite” answer to this one. But the summary would be that, historically, the freedom of conscience is a corollary to the classical "freedom of the church," and that both the church and the "inner church" of conscience were viewed as in some sense jurisdictions independent of the state's jurisdiction. An imperfect analogy would be to a foreign embassy: we don't impose our labor laws on a foreign embassy because, quite simply, we don't have jurisdiction there. The classical view has largely been forgotten, of course, but it hasn't been improved on.
Douglas Laycock
Freedom to exercise one’s religion can be overridden for sufficiently compelling government interests, and whether nondiscrimination laws present such an interest is a fairly debatable question. Often yes, especially in commercial contexts and where the religious saliency of the class or behavior is low; clearly no, in my view, inside religious organizations. And I think no in contexts where religious salience is high, such as marriage. But plainly, people disagree about these questions.
Ian C. Bartrum
The first good and easy answer is that there is explicit, express protection of religious freedom in the Constitution. So religion is special for just that reason. I do, however, think that difficult questions arise when religion comes into conflict with other constitutionally protected values—like Equal Protection. I think in those cases the competing claims of religion and EP have to be evaluated on a case-by-case basis. I have a short piece that is just about to come out at Northwestern, which argues that racial equality is an important enough value that it should trump religious liberty.
Robert Vischer I think the state has already overreached on some of these issues. I do think that religious commitment tends to produce a different level of conscientious objection than many non-religious objections because of both the depth and (perceived) objectivity of the underlying belief. I don’t think that’s always true, though. An even more obvious distinction, though, emanates from the First Amendment. A state that requires the Catholic Church to hire women as priests has blatantly violated the Free Exercise Clause. A state that requires the Jaycees to admit women has also infringed on their associational rights, but the constitutional violation is not as clear (though I would argue that it’s still there, even if the Supreme Court disagrees).
M. Cathleen Kaveny
I don’t think religiously based refusals should be exempted from basic norms of how we deal with one another—particularly institutions. So I would not support a religious hospital’s refusal to serve the adherents of another religion. Refusing service to people on a discriminatory basis is, however, different from refusing to provide a particular service to everyone. If a Catholic hospital let white women have abortions but not black women, or vice versa, I would not accept that claim.
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