Question 8: Convenience and Hardship

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' eighth question:
When the practical burdens on an individual who are denied certain services are minor it is often seen as a more permissible ground for such consciences objections. How much of a factor should convenience and hardship be in determining permissibility? Should we consider the burden on the denied individual's sense of themselves as an equal citizen and moral being?

Marc O. DeGirolami:

I think hardship ought to matter. A person who has access to many wedding cake makers in a large metropolis does not have a particularly powerful claim, in my view; other kinds of service-seekers do. If we are to consider people’s “sense of themselves as an equal citizen and moral being,” we should consider the religious objector’s feelings as well.

Richard S. Meyers:

I don’t think this ought to play a big role. Consider, for example, a family owned pharmacy that doesn’t want to offer certain drugs. If they are allowed that choice, it may mean that a person seeking the drug would have to drive a mile more to another pharmacy. I don’t think that burden ought to weigh heavily in the analysis. The person seeking the drug might have the “burden” of knowing that the family pharmacy believes that there is something wrong with the use of the drug. In many of these cases, I think that’s what is at issue. The person seeking the drug or an abortion (in the case of the nurses who don’t want to be forced to assist the abortion) wants their choice validated or legitimized. I don’t think that that desire (to have others approve of their conduct) ought to override the exercise of conscience.

Thomas Berg:

“Convenience and hardship” offer a way to balance the competing claims. If the burden on “the denied individual's sense of themselves as an equal citizen and moral being” is enough to override a religious objection and force the objector to facilitate a marriage directly, then it allows for no compromise between the two sides. It ignores that religious objectors who bring their fundamental beliefs/identity into public life make claims similar in many ways to those of same-sex couples.

Ira “Chip” Lupu:

Denial of services may be a denial of dignity as well as a practical burden. How can we tell when or whether a denial of dignity is worse than a violation of religious conscience? Perhaps we should care how avoidable the injury is, but that's true on both sides of all these conflicts (e.g., same sex partners could find a sympathetic photographer, and photographers could stop working at weddings).

Steven D. Smith:

Well, when interests or “rights” conflict and come in for “balancing,” it’s platitudinous that the significance of the relative burdens becomes relevant. And I would be very loath to limit people's liberty, including their religious liberty, in order to protect other individuals’ “sense of themselves . . . .”

Douglas Laycock:

Modest inconveniences cannot reasonably trump a deeply held right of conscience. And people in same-sex relationships cannot be sheltered from the knowledge that some Americans deeply disapprove of what they are doing. Of course, the people in these relationships think that those who disapprove are fundamentally wrong; they deeply disapprove of the disapprovers. Both sides argue that their rights are not really respected unless the other side’s rights are suppressed. Each sides’ position is equally fallacious at this point.

Ian C. Bartrum:

… To the extent you are asking whether its ok to allow conscientious objectors to refuse some services if the same service is available next door, I do think that this has some bearing as a prudential matter. If it is easier to recognize conscience rights and fulfill someone’s need for service—why not do it? I do think that the denied person’s autonomy etc. is a consideration, but I’m not convinced that is a concern that trumps the religious rights recognized in the Constitution.

Caroline Mala Corbin:

Yes. Equal Protection is about equal opportunity, equal citizenship, and equal dignity. To focus on the first only overlooks the other values at the core of Equal Protection.

M. Cathleen Kaveny:

I think there are two sets of factors: 1) dignitarian concerns; and 2) convenience/expense concerns. If a town clerk refuses to certify a wedding, you might have a problem with one, but not the other.

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