Tuesday, October 10, 2017
A new paper I've just posted to SSRN may be of interest to MOJ readers. The paper--my contribution to a volume edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge University Press 2018)--is titled:
Conscience v. Access and the Morality of Human Rights,
With Particular Reference to Same-Sex Marriage
The paper is available here. The abstract:
Little remains to be said about “conscience v. access” that has not already been said — and often well said. Or so it seems to me. (Not that a consensus has been achieved. Far from it.) But “little” is not “nothing”. My aim in this chapter: to bring the morality of human rights to bear, and to do so with particular reference to conscience-based opposition to same-sex marriage. In particular, my aim is to bring to bear two rights that are fundamental parts of the morality of human rights: the human right to religious and moral freedom and the human right to moral equality. On "the morality of human rights", see Perry, Michael J., A Global Political Morality: Human Rights, Democracy, and Constitutionalism (April 25, 2017) available at: http://ssrn.com/abstract=2956843.
The intuition of many persons — an intuition I share — is that the conscience-based claim for an exemption from an antidiscrimination law pressed by the florist (baker, photographer, etc.) who is morally opposed to same-sex marriage presents us with a more complex and difficult issue than the conscience-based claim for an exemption pressed by the florist who is morally opposed to interracial marriage. My argument in this chapter serves to provide a rational vindication of that intuition; it serves to explain why as a matter of principle — specifically, as a matter of the human right to moral equality — the two conscience-based claims merit different responses, even if it is not unreasonable for lawmakers, in legislating, or for judges, in adjudicating, to reach the conclusion that, all things considered, the former claim too should be rejected.