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, October 17, 2009

Conscience and Consequences

Someone who holds, as I do, that the racist justice of the peace in Louisiana who refuses to perform marriages of interracial couples should not be permitted to retain his job is not logically committing himself to the proposition that a justice of the peace or other official in a jurisdiction that recognizes same-sex or polyamorous partners as eligible to marry should not be able to retain his job if he refuses, as a matter of conscience, to participate in same-sex or polyamorous ceremonies. One need not adopt the view that officials must either be free as a matter of conscience to refuse to perform any marriages they happen, however unreasonably, to disapprove of, or be required to perform any marriages that are lawfully permitted.  Different cases are distinguishable in various important respects.  Still, I suspect that most advocates of redefining marriage believe that, once marriage is redefined as they wish it to be, those officials who cannot in conscience perform certain marriages should, as Rob Vischer puts it, "find another line of work."  I find this extremely interesting and instructive.  It means that if proponents of redefining marriage get their way, many faithful Catholics, Evangelical Protestants, Eastern Orthodox Christians, Mormons, Orthodox Jews, Muslims, and others would not be eligible for certain public offices.  It puts the lie to the claim, never really plausible, yet very often repeated, that no one would be adversely affected or suffer any injury to their opportunities or interests if the law were to be revised to recognize as marriages (or give some other form of legal recognition to) same-sex partnerships.  (By now everyone has heard the argument that says, "How does it affect you if the two men or two women living next door have their relationship recognized as a legal marriage?  It would have no impact on you at all.")  This is something that citizens in states where redefining marriage is at issue should bear in mind in considering how they should vote and where they should stand.  When some proponents of redefining marriage assure them that there will be no consequences for anyone who happens to object on moral grounds to the recognition of same-sex partnerships as marriages, I hope that others on their side will honestly and candidly admit the truth: among the consequences (though far from the only, or even the most important, one) will be the exclusion of many reasonable people of goodwill from eligibility for certain public positions as a result of their conscientious moral beliefs about marriage.


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