Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, April 25, 2009

More on Conscience Protection




I should like to begin by thanking my MOJ friends Rick Garnett and Tom Berg for their great work, and that of their colleagues, for preparing their responses to the Connecticut legislative initiative to codify the decision in the Kerrigan case. Both Kerrigan and its codification, in my estimation, are mistakes. No surprise there regarding my viewpoint, which I believe is reflective of the Church’s teachings on these issues.


Having said this, what is to be done? To borrow an expression… As Tom suggested a while back, there is an urgent need to enact and implement appropriate and effective conscience protection. In the past, I, too, have argued the need for appropriate conscience protection to serve as a counterpoint to the totalitarian appetites of the present age. So, I am most grateful to Rick and Tom for their skillful labor to maximize conscientious objector protection.


I would now like to offer a few thoughts about what the current legislative protections appear to imply and what they may not. First of all, it is satisfying that religious organizations are the logical beneficiaries of the conscience protection. But, we need to take stock of the inevitable fact that organizations (be they churches, fraternal organizations, other associations, etc.) while being juridical persons are, in fact, an association of natural persons, i.e., individual human beings who are members. It strikes me that if the conscience protection afforded the organization may not apply to the individual member, what protection, in fact does the organization really enjoy if its members are exposed to liabilities under the law? It is a protection that becomes easily forfeited if the protection clause is without substance and cannot be relied upon by the organization’s members.


But let us assume that the conscientious objector protections also extend to the individual members of the organization. What claim to conscience protection can be made by the person who is not a member of an organization that is the beneficiary of the conscientious objector protection clause? We need to remember what Christopher Dawson noted in the 1930s when he predicted that the insistence for uniformity imposed by the totalitarian authority which demands universal adherence to some problematic idea can push the Christian or other believer out of physical existence. Our friend and MOJ colleague Michael Scaperlanda has offered parallel thoughts in his 2002 essay in the Texas Review of Law and Politics concerning the resistance or opposition from the state that families who wish to rely on voucher programs to ensure a proper education to their children encounter. In short, recognition of same-sex marriage is not enough unless it is embraced by one and all. And this outcome is not representative of democracy but of the totalitarian state. The religious liberty protection offered may, in fact, be no protection at all if it cannot be relied upon by those to whom it should logically apply. If the same-sex marriage advocate persists in seeking nondiscrimination for his or her clientele, why should the advocate for religious liberty not be able to do the same?


In considering the harassment question, I agree that harassment of persons seeking same-sex marriage is morally objectionable. But I hasten to add that so is harassment of those who on religious or any other ground wish to exercise their proper liberty to protest or object to same-sex marriage within the mechanisms of our democratic and juridical institutions. It is tragic to see those citizens who have assembled to support Proposition 8 (California) be harassed by those citizens who opposed the initiative. It is tragic to see Miss California publicly harassed for giving a candid and respectful response to the issue of same-sex marriage during the Miss USA pageant.



RJA sj




Araujo, Robert | Permalink

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