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Monday, November 30, 2009

Why shouldn't the liberty of conscience extend to the racist JP?

Earlier this month, Keith Bardwell resigned as a justice of the peace in Louisiana, a couple of weeks after invoking his conscience as a basis for refusing to issue a marriage license to an interracial couple. I wish that the refusal had never occurred, but if it was going to occur, I wish it had happened before I sent the final galleys of my book on conscience to the publisher. Bardwell’s refusal provides a helpful glimpse into the complicated battle lines surrounding the right of conscience today.

Is it possible to take a right of conscience seriously yet deny it to a justice of the peace in these circumstances?  I believe that it is, not because of the substance of the views, but because it is a public official acting on those views.  For the same reason, I do not believe that Massachusetts shirks its commitment to liberty of conscience if it fails to accommodate the conscience-driven views of JPs who refuse to issue marriage licenses to same-sex couples.  Though I consider myself someone who takes the liberty of conscience seriously, this places me on the opposite side of some of the leading lights on this issue.   (E.g., Steve Shiffrin and Robert George, two scholars whose work I respect tremendously and who come from opposite ends of the political spectrum, believe that a right of conscience should encompass a justice of the peace’s refusal to issue marriage licenses, at least under some circumstances.)

In my view, the government can legitimately require its agents who are tasked with implementing its laws to, well, implement its laws.  The more pressing concern, in my view, is to ensure that the government does not treat marketplace providers as a form of “public official” automatically subject to anti-discrimination laws.  Further, we should resist the temptation to treat licensed marketplace providers as “public officials” by virtue of their licenses.  In other words, the more interesting questions involve the expanding definition of “public official,” not the obligations properly shouldered by public officials.  Licenses are assurances of competence, not evidence that a provider has become a de facto government agent.  In cases where access to an essential good or service is threatened, the government may prudently take steps to attach certain strings to licenses, but those strings should be a last resort.

If you have interest in the rapidly evolving and intensely contested notions of conscience reflected in modern law, you might want to check out my book, due out in December:  Conscience and the Common Good: Reclaiming the Space Between Person and State.

Posted by Rob Vischer on November 30, 2009 at 04:33 PM | Permalink

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Comments

If the status of a right of conscience is tied to whether it is being exercised by a public official, where does that leave Title II of the Civil Rights Act of 1964?

Posted by: Mark | Dec 1, 2009 9:40:29 PM

Paul,

Well, that's where we disagree, then; I'm very skeptical about making property rights contingent on market conditions (I'm basically Nozickian that way). (Some of this comes out in my critique of antitrsut law: http://ssrn.com/abstract=1276477.)

Posted by: Mark D. White | Dec 1, 2009 7:13:09 PM

Mark,

I agree, Schapiro's thesis isn't directly applicable, but it captures the general concern with releasing deontological principles from over-strong context insensitivity that I was trying to invoke.

It also seems to me that quite a lot of the things we might think of as rights are subject to market conditions. The most obvious example is property rights in the distributive justice context. (State interference with one's property endowment is acceptable in world A but not acceptable in world B, when the only difference between the two is in market conditions, that is, the extent to which others are in need.) Indeed, this is probably why distributive justice is such a hot area for critics of agent-relative prerogatives...

Posted by: Paul Gowder | Dec 1, 2009 6:30:14 PM

Paul,

Thanks for your reply. I'm not sure Schapiro's thesis is applicable here, at least how I see it (and remember it). IIRC, I share her general view regarding Kantian rigorism in the face of conflicting obligations, and am advancing a similar point in my current work.

My point in my previous comment was that if we recognize that someone has a certain right (such as a right to conscientious objection), it doesn't seem that that right should be weakened because of the market conditions one finds oneself in. That is not to say such rights are absolute, but merely that a Herfindahl index doesn't seem to be of sufficient moral weight to override them. If we are going to compromise that right in the face of insufficient market competition, then it doesn't seem to have been much of a right at all ("you don't have to dispense this medicine unless no one else can").

My point may be clearer if we think of the pharmacist's conscientious objection as a agent-relative prerogative: "I will refuse to dispense certain medications no matter how strongly customers want them." If we grant legitimacy to that prerogative, the fact that you may be the only source for those medications does not seem to affect it, given that it falls under the "no matter how" clause.

Posted by: Mark D. White | Dec 1, 2009 5:11:15 PM

The Constitution itself, however, does single out religion
for special protection.

Posted by: Joe | Dec 1, 2009 5:07:45 PM

Mark, practical matters matter when there are important interests at stake. The liberty of conscience is just too strong if it can casually override serious and legitimate needs of others. I just find it implausible to think that it's more important that Peter be able to obey his religious rules than that Mary can avoid an unwanted pregnancy. What exactly is objectionable about making a right contingent on the social impact of its exercise? This seems to only be a problem if you accept a deontological conception of normative principles (including rights) so strong that even the more sensible of modern Kantians would reject it. (See Tamar Schapiro, “Kantian Rigorism and Mitigating Circumstances,” Ethics 117:32, 2006.)

But admittedly, this is a consequence of my general view on liberty of conscience, which is somewhat skeptical. I still haven't heard a convincing argument for limiting liberty of conscience to religious views, and an unlimited version of liberty of conscience that carves out a broad principle of legal accommodation for individual conceptions of the good seems to eat up pretty much all state authority and require a Nozick-style miniarchy at most. (One of these days, I'll turn back to a working paper on this.) The only solution I can see is to just drop the principle of religious accommodation to generally applicable law and turn back to Locke-style toleration.

Posted by: Paul Gowder | Dec 1, 2009 4:47:15 PM

is there a "compelling state interest" in the face of
scarcity that in not present in the urban example?

Posted by: Joe | Dec 1, 2009 4:35:18 PM

I'm curious why a person's liberty of conscience (and any derivative rights) should be contingent on the competitiveness of where he or she works--that seems to me to be a practical matter that shouldn't impact the person's liberty rights (assuming we grant them at all). Perhaps the rural pharmacy itself has an obligation to hire a pharmacist who feels comfortable dispensing the controversial medication, but I can't see protecting the rural pharmacists rights any less than the urban one simply because of his or her location.

Posted by: Mark D. White | Dec 1, 2009 1:45:17 PM

Paul, I'm not necessarily opposed to thinking about state officials' exercise of conscience claims in terms of a rights violation, but I'm not sure it will always work. If you go to the county clerk's office to pick up a marriage license, and one clerk steps back from the window once he sees that you're part of a same-sex couple, have your rights been violated if there is another clerk who steps up and gives you the license? I'm not sure, but I do think that the state as employer can define its job duties to include non-discrimination.

And I agree that the marketplace will not always be competitive, and that the state should have a role in ensuring access. In many of the current debates, though, the focus is not on access so much as on elevating non-discrimination as a non-negotiable norm or requiring the universal availability of a contested good or service. I agree that there is a difference between the rural pharmacist and the Manhattan pharmacist.

Posted by: rob vischer | Dec 1, 2009 1:27:55 PM

I don't understand the "most advocates of redefining marriage" concern in the linked post. If a "faithful Catholic" justice of the peace can marry those divorced via current liberal divorce laws or Orthodox Jews in that position could marry a Jew who wishes to marry a Catholic, and I'm not aware of many publicly saying they cannot, why is same sex marriages opposed on religious grounds of a special caliber without it being clear discrimination against homosexuals?

Posted by: Joe | Dec 1, 2009 1:15:05 PM

I'm sympathetic to the Manhattan v. rural pharmacy hypo.

Not sure if it's workable overall, but I'm sympathetic.

Posted by: Joe | Dec 1, 2009 1:08:22 PM

Weird, my reply comment didn't show up. Ok, trying to reconstruct. I think we basically agree, but with two caveats.

1. You seem to think that the source of the obligation of state employees to implement state policy regardless of their personal qualms is just the fact that it's state policy. (The idea here is something like "the state isn't violating anyone's liberty of conscience when it acts as an employer.") There's some appeal to that (though it also raises some problems -- does it allow the state to override conscientious objectors in cases like military service?), but I think there's more appeal to the notion that citizens have rights against the state and state officials have no place refusing to provide those rights.

That is, what's important isn't that they're state EMPLOYEES, following state policy as ordered from above. What's important is that they're state OFFICIALS, exercising authority over citizens. It's a misuse of that authority to bend it to personal, including religious, purposes.

2. How much does your unwillingness to constrain private marketplace providers depend on an assumption that the marketplace is competitive? It's a lot more worrying to think about the only pharmacist in a small town refusing to provide the morning after pill, rather than some CVS clerk in Manhattan.

Posted by: Paul Gowder | Dec 1, 2009 12:06:22 PM

Sure, but when we're talking about state employees, the skepticism is less warranted. I guess my point is that it's not that state employees ought to be compelled to provide services that they object to because the state has a right qua employer to order them to do so, they ought to be so compelled because the citizens have a right to having agents of the state supply those things to which they have a right without injecting their personal interests.

Incidentally, how much of your view on private marketplaces is based on an assumption that the market is competitive? Personally, I'd feel lots less comfortable permitting the only pharmacist in town to refuse to sell the morning after pill than I feel about accommodating one religious person in some CVS in downtown Manhattan.

Posted by: Paul Gowder | Dec 1, 2009 12:00:10 PM

Paul: I agree, though it depends, of course, on how we define the right in question. Does a person have a right to acquire the morning-after pill at pharmacy A? If she could acquire it at pharmacy B, directly across the street, does she still have an enforceable right against pharmacy A? (Illinois says yes.) Does she have a right to require a photo agency to shoot her same-sex commitment ceremony, even if there are plenty of other agencies in town willing to do so? (New Mexico says yes.) I'm skeptical.

Posted by: rob vischer | Dec 1, 2009 10:59:45 AM

I'm a bit more interested in the prior question: "why shouldn't the liberty of conscience stop when it intersects with the rights of others, just as the liberty of fist-swinging stops when it intersects with the noses of others?"

Posted by: Paul Gowder | Nov 30, 2009 11:42:15 PM

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