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Thursday, May 21, 2009

Conscience, Speech and TIAA-Cref Advice

There's been a lot of talk recently about conscience exemptions: exemptions from generally-applicable laws based on religious or more general moral concerns.  President Obama called for one for medical personnel opposed to abortion, and the idea has been gaining currency that similar exemptions could be part of some sort of compromise on the same-sex marriage issue.  Nan Hunter's discussion of the conscience clause proposed as part of the New Hampshire same-sex marriage bill (at least until it got derailed) can be found here.  And of course some conscience exemptions exist as a matter of constitutional right under the Free Exercise Clause.

I've not given this matter much more than passing thought.  But it hit me in a personal way yesterday when, to relieve the tedium of grading, I went to talk to my TIAA-Cref representative (a bad-news-for-bad-news trade if there ever was one).  We had not met before, as it was my first meeting with a rep based in New York.  Early on in the discussion he asked me for whom I was doing retirement saving -- i.e., who was going to rely on my money.  I did my normal split-second assessment and decided to come out and refer to my partner as my husband.  It worked out fine: the rep was perfectly appropriate and we had a good meeting.

But what if he had objected?  What if he had said, "I'm sorry but I can't in good conscience give you financial planning advice designed to take full advantage of your legal and lifestyle status, both of which I disapprove.  If I were to do so I would be acting to promote a relationship I consider immoral and would be a party to the perversion of the concept of marriage."  Could he do that?  Should he be allowed?

 I ask this because in the past I've heard scholars and commentators debate these kinds of issues in the context of wedding photographers and the like -- there was an infamous case of a photographer in New Mexico who refused to take photos at a same-sex commitment ceremony.  Some participants in these dicussions have argued that forcing a photographer to take photos of a ceremony, on pain of violating a public accommodations law, violated the person's free speech rights.  I assume there's consensus at the extremes: nobody would think a minister should (or could) be forced to preside over a marriage ceremony to which he has moral or religious objections.  But how far does that go?  The photographer?  How about the cake decorator?  (Don't forget the unfortunate "Happy Birthday Adolf Hitler" birthday cake incident.)  The limo driver?  The tux renter?  The financial planner?

I don't have a strong position on this, much less an answer.  I can see the arguments on both sides -- and I can also see the practical point, made by Dale Carpenter, that most gay people would simply not want a personal service from someone who objected on moral grounds to providing it to them.  But when it gets to day-to-day kinds of services (my financial planner, for example), should it fall to, well, me, to have to call his manager and request another rep?  That seems to inflict a real dignity hit on me: "Uh, Mr. Smith, the rep I met with this morning considers my marriage immoral and perverse: could you please find someone who's willing to look at our investments?"  Let me be clear: I've never faced that situation.  But I suspect others have, maybe if not so explicitly (or maybe so -- consider the case of the Houston landscaper).

Any thoughts?  How far does conscience go?  How far does speech go?  Cake decorating?  Financial planning?  Landscaping?

Posted by Bill Araiza on May 21, 2009 at 04:37 PM | Permalink


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Conscience exemptions is more of a way to water down a controversial bill to make it easier to pass. So I think the conscience exemptions should only apply to ministers (in the case of gay marriage) and doctors and nurses (in the case of abortion). And other people should not have this exemption. Otherwise, it should be treated as discrimination.

Posted by: Joyce | May 25, 2009 4:09:18 AM

I can't help but notice that the proposed language in each case seems to single out not only gay men & women for the religious exemption, but also a specific viewpoint: those against marriage equality.

It would be interesting if there were a version for the religious exemption where services could be refused to people who don't honor the religious sanctity of marriage equality.

Wouldn't that be fun? yeah, you can discriminate against the lesbians who want to rent a wedding hall, but what if it went the other way around -- a city could refuse to grant licenses for demonstrations etc. to any person or organization that didn't support marriage equality?

Sort of reveals that the religious exemption is an effort for certain homophobic people to seek special rights under the guise of religious freedom.

Posted by: Gib Wallis | May 22, 2009 6:26:57 PM

Yeah, I can imagine such things being a real problem. No doubt about that. But it really comes down to how much of a real problem this is rather than an imagined one. For birth control or morning-after pills, I can see real potential for serious imposition. For caterers of weddings and financial planners, I'm not really sure. It's an empirical question, I think.

As for the nature of these laws, I'm not really sure it has to be as you described. There could be laws that say that a person can't be fired for acting upon religious objections; but there could also be laws that simply say that the law will not compel a person to do that which he/she objects to--leaving any consequences to the market. I haven't paid close enough attention to know what we're talking about in this particular context.

Posted by: Hillel Y. Levin | May 22, 2009 3:28:50 PM

Two points about the market forces argument:

1. Isn't the whole point of the "conscientious objector" laws to overcome market forces? My understanding is that they prevent employers from firing workers who decline to provide services to which they have a religious objection, so that the driving instructor in your story would (or may, depending on the law) not have been discharged for aggressively proselytizing.

2. The market forces point works well in, say, a large city where there are a variety of services. A woman who runs into a pharmacist who won't dispense birth control can just go down the block and likely find someone who will (though as Bill points out, there are dignitary and transaction costs to this). But imagine that we're talking about a small town with a relatively homogeneous approach to religion; there may be only a handful of pharmacies in such a town, and they're all likely to share the same views. Here, the market-forces argument seems to require those burdened by the "CO" laws to move, and that's a whole different magnitude of transaction-cost problem.

Posted by: Dave | May 22, 2009 12:33:45 PM


I've been thinking about these questions recently as well. I too am torn about the sensibility of some of this on the one hand, and the indignity on the other. And, of course, we wouldn't tolerate a financial planner who refused to advise women, or African-Americans, or an African-American man who is married to a White woman (or vice versa).

But this actually does seem to me one of those things that the market will likely take care of. First, if there really is a widespread practice of "conscientious objection" to same-sex relationships, surely there will be caterers and photographers, and maybe even financial planners, who will gladly cater to same-sex couples. Second, and perhaps more important, I suspect that if you had a negative experience with the TIAA-Cref rep. and put in a call to the supervisor, the rep would get something of a dressing down and, eventually, be fired. In my view, that's not such a bad thing.

This brings to mind a drivers' ed. instructor I once had. He spent our drive together proselytizing to me. A friend had the same experience. Our parents called the head of the driving school and explained that it was inappropriate for the instructor, who was grading us, to hold us (Orthodox Jewish children) captive to his attempts at religious indoctrination. The owner of the company immediately agreed and spoke with the instructor. The instructor informed him that he had a religious duty to proselytize and wouldn't stop. The owner fired him. All in all, I'm fairly convinced that justice was served here all around. The instructor got to live by his principles, and he also faced appropriate market sanction for them; and the next batch of 16 year olds didn't suffer the same treatment.

I'll be the first to recognize the important differences between this experience of mine and what you have described. But they seem sufficiently similar to me that we might have similar intuitions in both cases.

I'm curious to hear your take.

Posted by: Hillel Y. Levin | May 21, 2009 7:30:05 PM

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