Refusals of Conscience: What Are They and When Should They Be Accommodated?
Greenawalt, Kent, Ave Maria Law Review
Approaching this subject as a decided nonexpert, I want to explore a number of questions about a right to conscience in respect to refusals to provide health-care services. My hope is that the questions will seem important and relevant, even if some of my tentative answers are controversial or even misguided.
It is helpful to distinguish three levels of analysis: 1) What would be an ideal scope for rights of conscience if we could put aside difficulties of administration and political feasibility? 2) What would be a desirable approach given administrative and political realities? 3) And in what rhetoric should claims of conscience be formulated when supporters address those with authority to enact legal rights?
I am assuming that at the first two levels, a theorist is aiming to be as objective and open as possible; I do not suppose that about those engaging in what I shall call public rhetoric. This can present a dilemma for a scholar who perceives an issue as complex but is strongly committed to particular outcomes, who finds herself in an influential role, and believes that effective persuasion demands oversimplification.
Let me give an example, one that starts from my particular sense of our historical tradition. The basic right of conscience regarded as critical at the Founding was the ability to develop one's religious beliefs and practice worship with co-believers free of government interference. Although Michael McConnell has made a strong case that some basic right was recognized to be exempt from the imposition of general laws not themselves directed at religion, (1) other able scholars disagree, (2) and insofar as one can discern their position on this precise question in relation to the Free Exercise Clause, the majority of the Supreme Court apparently agrees with those scholars. (3) One thing that is clear is that John Locke, in the small amount of attention he gave to the question, saw no problem with applying general, neutral laws to those with opposed religious conviction. He suggested that a law against killing cattle could properly be enforced against those who believed they should engage in religious sacrifices of cattle. (4) I am unaware of any suggestions that the Founders would have contemplated the government mandating how private businesses should respond to employees who decline from conscience to perform tasks that are part of their jobs.
I do not mean to imply that historical recognition of the importance of conscience is irrelevant, but some vital steps need to be filled in--namely, that the significance of freedom of conscience extends beyond what some early proponents clearly recognized, that we now see the government as a potential protector of liberty, as well as an infringer of liberty, and that with pervasive modern government involvement in the provision of services and in ordering the economy, restrictions on how private employers deal with their own workers make sense. Laws banning racial, sexual, and religious discrimination are a powerful illustration, and indeed an employer's refusal to accommodate conscience, especially religious conscience, can be regarded as one form of such discrimination.
The dilemma for someone who advocates government protection of conscience is how much of this complexity to acknowledge when one is urgently seeking reform. A simpler approach that stresses our tradition of freedom of conscience may be more effective. In any event, for the third level of analysis, rhetorical effectiveness, one might choose to simplify matters not only in respect to how rights are formulated but also in respect to their theoretical justifications.
In what follows, I will disregard two very important distinctions for our system of government. Although I am strongly opposed to the Supreme Court's ruling in Employment Division v. Smith that the Free Exercise Clause provides no protection against the application of typical neutral laws of general application, (5) I shall not consider how far claims of conscience in respect to health care should be constitutionally grounded. …