Question 9: Competing Conscience Claims

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' ninth question:
Consider this claim from an amicus brief in Perry v. Schwarzenegger (CA Faith for Equality et. al.): "by adopting sectarian religious doctrine to restrict marriage, Proposition 8 actually impinges upon the religious liberty of Californians whose faith traditions, congregations and clergy have welcomed same-sex couples to enter legal marriages in religious ceremonies." To what degree does making a claim of conscience in a pluralistic society involve a reciprocal obligation to respect others' consciences on the same issue?

Thomas F. Farr:

This amicus brief is an example of the distortion of conscience as license to do what I want merely because my conscience tells me to do it. If conscience is to mean anything within our jurisprudence, it must have some objective referrent—some measure of my behavior other than my strong desire to do something.

Richard W. Garnett:

This claim is not, in my view, a plausible one. First, it assumes that Proposition 8 “adopt[ed] sectarian religious doctrine.” The fact that many religious people oppose same-sex marriage does not mean that Prop. 8 “adopted sectarian religious doctrine,” nor would the fact that many people supported Prop. 8 for religious reasons. Second, the government's refusal to expand marriage to cover same-sex unions does not burden the religious liberty of anyone (any more than a move to same-sex marriage, by itself, burdens the religious freedom of those who object). Certainly, to believe in freedom of conscience is to believe in freedom of conscience for all. But, this point is not relevant, in my view, to the particular question whether the state may or should expand civil marriage to include same-sex unions.

Richard S. Meyers:

Note that the brief is trying to delegitimize the moral position reflected in the law by calling it religious or sectarian; the same move is made with regard to abortion—people in favor of abortion rights argue that laws restricting abortion are only based on religious ideas; the courts have typically rejected that sort of argument in the context of abortion, and they should so here as well.

Sometimes you can’t do both; in some contexts, the government needs to make a decision one way or the other. That’s true with abortion, for example. The government needs to make a choice one way or the other whether to protect the unborn; it can’t respect the conscientious choices of people who want to protect the unborn and people who don’t. Think of this in other contexts—e.g., slavery in the first half of the 19th century. We couldn’t respect both the views of those who thought slaves ought to have legal rights and those who didn’t; at some point choice doesn’t solve every contested issue; we can’t leave this to the conscience of every slave owner because that will mean that we have already decided that the slaves don’t have rights.

Marc O. DeGirolami:

There is little doubt that the whole conscience discussion can devolve into a ‘my belief is better than your belief’ competition. If judge walker’s statement is taken at face value, then there is little point in talking about religious exemptions or accommodations at all, let alone any that might be constitutionally required.

Ira “Chip” Lupu:

What does it mean to "respect others' consciences"? No one is demanding that faiths that oppose same-sex marriage extend their sacraments to such marriages. Isn't that all the respect that faith communities deserve—to be able to decide for themselves who shall receive blessings and sacraments within their own community? Why should any faith community be free to use the power of the state to impose a sectarian doctrine on other communities? A claim of conscience to be free to make your own choices is quite different from a claim that is designed to preclude the choices of others.

Steven D. Smith:

It is true, or simply truistic, that where religious views on an issue like this conflict, whatever position the law takes will probably conflict with some religious beliefs. I don't see any way around that fact. I don't think invocations of “reciprocity” advance our thinking at all in such situations, for much the same reason that invocations of “equality” don't really help.

Douglas Laycock:

This claim is also fallacious. But it is a natural outgrowth of our fundamental failure as a society to distinguish religious marriage from legal marriage. The church should be able to join whoever it wants in a religious relationship of marriage. But neither liberal nor conservative churches have any power or right to define legal marriage; that is a question of law. To turn it over to churches would be an establishment of religion.

The voters can define legal marriage as they choose, subject to constitutional requirements of equal protection of the laws and the right to autonomy in intimate matters (the right that has unfortunately come to be thought of as substantive due process). The constitutional challenge to legal restrictions on same-sex marriage is based in the Fourteenth Amendment, not in the Religion Clauses.

Robert Vischer:

I think this raises a lot of the questions that John Rawls got going in his discussion of public and nonpublic reasons in Political Liberalism. In particular, it raises some of the questions Kent Greenawalt explored about the problem of “imposition” kinds of nonpublic reasons—that is, when we vote for nonpublic reasons that actually end up imposing burdens on others’ ability to participate, etc. equally in society.

To my mind, this is the thrust of the (modern) Establishment Clause. While we have to protect free exercise rights, we also have to be sure that we don’t establish certain imposition reasons as part of the law. It is inevitable, I think, that people will hold religious beliefs that are intolerant of others free exercise, which is fine, as long as those beliefs don’t get the weight of law behind them.

That’s true to a certain point, but I believe that there is a difference between being forced to do something that violates your conscience and being forbidden from doing something that is permissible according to your conscience. The difference will begin to blur as the “may do” becomes a “must do” according to your conscience, but a church being forced to perform a same-sex marriage is a lot different than a church being prevented from having its understanding of marriage reflected in state law.

Nelson Tebbe:

I don't think the quote is correct—or at least, it's hard to prove. Prop. 8 was a referendum, and it's difficult to tell why people voted for it. Many may have had nonreligious reasons, despite the campaign in favor of it by the Mormon Church and other religious actors.

M. Cathleen Kaveny:

I think this is an important concern. I think too often, those who make conscience protections are tacitly doing so on the basis that their position is right—not that they hold it conscientiously.

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