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' twelfth question:
What are the challenges ahead, as you see them, for effectively implementing conscience-based exemptions from state-regulated jobs (e.g. pharmacists, clerks who administer marriage licenses, etc.)? Is there a difference in the scope of accommodations for government employees rather than state-regulated employees?
Richard W. Garnett:
I think there is a difference, though it will not always be a sharp one. Still, I do think it is important to distinguish between how the government itself acts and treats people, and how private people who are licensed by the government to do certain things act and treat people. The government should not be able to dramatically curtail the "private" sphere simply by declaring that this or that activity (now) requires a license. For example, it is not necessary to say that private adoption agencies (which are licensed) should have to act precisely like government-run adoption agencies.
Ira “Chip” Lupu:
Yes, government itself owes a duty to all whom it serves, and government serves through its agents (employees), so accommodations for government employees should be very rare if the accommodations involve denials of service. The interests may balance differently in the private sector, but I would always need to know more to suggest a proper balance in a particular case. The challenges to implementing exemptions are one part practical (avoiding service denials or indignities to those who seek service), and three parts attitudinal (why should government employees not be expected to serve all with equal respect?)
Steven D. Smith:
There are people like Doug Laycock and Alan Alan Brownstein who are actively working for balanced accommodations, but they report that hardly anyone on either side of the "culture war" issues seems especially interested. But I would think that if we can make progress in this area, yes, there would be a difference in the accommodations sensibly granted to government employess as opposed to private, state-regulated employees: I would think that the latter should receive considerably more accommodation than the former. For example, although I don't favor legal recognition of same-sex marriage, if a state does adopt that position I'm not especially sympathetic to, say, clerks in government offices who don't want to stamp marriage licenses. In the private sector, I believe more accommodation would be warranted.
Douglas Laycock:
The challenge is to protect the conscience of the pharmacists and clerks while still protecting access for those who need their services. And the challenge to that is each side’s view that it is entitled to absolute protection and that all costs and compromises must fall on the other side. Clerks and pharmacists who occupy blocking positions —who are the only source of a service or a license within a reasonable distance, or in a genuine emergency —are going to have to move to a more densely populated and served location or compromise with conscience on occasion. And some customers may have to change pharmacies, or come in on a different shift, incurring minor inconvenience to avoid a serious and unnecessary intrusion on conscience.
And yes, there is a difference between public and private employment. Government employees, in my view, get very limited conscience protections; they can inflict no more than a moment’s inconvenience on members of the public. They need an office ready to immediately provide an alternative clerk, without requiring the couple to wait in a different line …. And in the apparently dominant political view, government clerks are entitled to no accommodation at all. I think that’s wrong, but that’s the current way of the world.
Coda: Nearly all these questions come down to mutual respect for the deeply held interests of the other side. And that is what is totally lacking. Both the gay rights lobby and the conservative religious lobby view the other side’s most deeply held commitments as evil and unworthy of respect or legal protection.
Nelson Tebbe:
[There are] lots of challenges—same-sex marriage is a big one, and it presents difficulties not only for clerks and providers of public accommodations, but also for public school teachers, students and parents, and for a host of other people. Health care changes will matter too—should hospital workers have to assist in procedures they find objectionable? How about health insurance and the employers who buy it? It’s a complex field!
Robert Vischer:
The challenge will be to maintain public support for conscience even when the underlying issue is not morally problematic in the view of the majority of the public. E.g., I expect conscience protection for abortion will continue, but conscience protection for contraception may not. And yes, government employees can legitimately be required to perform the service defined by the government, just as private sector employees can legitimately be required to perform the service defined by their employers. The problem is when the government intrudes into the private sector to tell individuals what they can and cannot do in the context of their jobs. (Subject to some limitations, as described in my book.) A professional license does not make that individual a stage agent; the license is an assurance of competence, not an assurance of compliance with certain contested moral norms.
Mark R. Wicclair:
The primary challenge is to strike a reasonable balance between protecting the exercise of conscience and ensuring access to goods and services, such as abortion, emergency contraception, fertility services, palliative sedation to unconsciousness, and so forth. The health care provider conscience clause (HHS Final Rule) promulgated by the Bush administration and revoked by the Obama administration is an example of a failure to strike a reasonable balance. It provided too much protection of conscience and too little protection of patients and health care organizations.
Richard W. Garnett:
I think there is a difference, though it will not always be a sharp one. Still, I do think it is important to distinguish between how the government itself acts and treats people, and how private people who are licensed by the government to do certain things act and treat people. The government should not be able to dramatically curtail the "private" sphere simply by declaring that this or that activity (now) requires a license. For example, it is not necessary to say that private adoption agencies (which are licensed) should have to act precisely like government-run adoption agencies.
Ira “Chip” Lupu:
Yes, government itself owes a duty to all whom it serves, and government serves through its agents (employees), so accommodations for government employees should be very rare if the accommodations involve denials of service. The interests may balance differently in the private sector, but I would always need to know more to suggest a proper balance in a particular case. The challenges to implementing exemptions are one part practical (avoiding service denials or indignities to those who seek service), and three parts attitudinal (why should government employees not be expected to serve all with equal respect?)
Steven D. Smith:
There are people like Doug Laycock and Alan Alan Brownstein who are actively working for balanced accommodations, but they report that hardly anyone on either side of the "culture war" issues seems especially interested. But I would think that if we can make progress in this area, yes, there would be a difference in the accommodations sensibly granted to government employess as opposed to private, state-regulated employees: I would think that the latter should receive considerably more accommodation than the former. For example, although I don't favor legal recognition of same-sex marriage, if a state does adopt that position I'm not especially sympathetic to, say, clerks in government offices who don't want to stamp marriage licenses. In the private sector, I believe more accommodation would be warranted.
Douglas Laycock:
The challenge is to protect the conscience of the pharmacists and clerks while still protecting access for those who need their services. And the challenge to that is each side’s view that it is entitled to absolute protection and that all costs and compromises must fall on the other side. Clerks and pharmacists who occupy blocking positions —who are the only source of a service or a license within a reasonable distance, or in a genuine emergency —are going to have to move to a more densely populated and served location or compromise with conscience on occasion. And some customers may have to change pharmacies, or come in on a different shift, incurring minor inconvenience to avoid a serious and unnecessary intrusion on conscience.
And yes, there is a difference between public and private employment. Government employees, in my view, get very limited conscience protections; they can inflict no more than a moment’s inconvenience on members of the public. They need an office ready to immediately provide an alternative clerk, without requiring the couple to wait in a different line …. And in the apparently dominant political view, government clerks are entitled to no accommodation at all. I think that’s wrong, but that’s the current way of the world.
Coda: Nearly all these questions come down to mutual respect for the deeply held interests of the other side. And that is what is totally lacking. Both the gay rights lobby and the conservative religious lobby view the other side’s most deeply held commitments as evil and unworthy of respect or legal protection.
Nelson Tebbe:
[There are] lots of challenges—same-sex marriage is a big one, and it presents difficulties not only for clerks and providers of public accommodations, but also for public school teachers, students and parents, and for a host of other people. Health care changes will matter too—should hospital workers have to assist in procedures they find objectionable? How about health insurance and the employers who buy it? It’s a complex field!
Robert Vischer:
The challenge will be to maintain public support for conscience even when the underlying issue is not morally problematic in the view of the majority of the public. E.g., I expect conscience protection for abortion will continue, but conscience protection for contraception may not. And yes, government employees can legitimately be required to perform the service defined by the government, just as private sector employees can legitimately be required to perform the service defined by their employers. The problem is when the government intrudes into the private sector to tell individuals what they can and cannot do in the context of their jobs. (Subject to some limitations, as described in my book.) A professional license does not make that individual a stage agent; the license is an assurance of competence, not an assurance of compliance with certain contested moral norms.
Mark R. Wicclair:
The primary challenge is to strike a reasonable balance between protecting the exercise of conscience and ensuring access to goods and services, such as abortion, emergency contraception, fertility services, palliative sedation to unconsciousness, and so forth. The health care provider conscience clause (HHS Final Rule) promulgated by the Bush administration and revoked by the Obama administration is an example of a failure to strike a reasonable balance. It provided too much protection of conscience and too little protection of patients and health care organizations.
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