Saturday, October 17, 2009
For what it is worth, I think justices of the peace should be able to refuse to marry individuals if their consciences would be violated even if a justice holds the view with respect to interracial couples. (As described, the JP in Louisiana has not put forward a reason grounded in moral obligation). In my view, the Smith case elevates considerations of judicial administration over freedom of conscience. I do not think freedom of conscience should always prevail (e.g., human sacrifice), but, to my mind, as a normative matter the justice of the peace cases are easy even though I think in the case of race and sexual orientation that the posited justices have ill-formed consciences. Freedom of conscience should be protected whether or not the conscience has arrived at the right moral conclusion.
I also agree with Rick that associations should be able to condition membership or employment or religious grounds (whether we call it discrimination or “hiring to mission”). But I do not think it helpful to describe associations as having a conscience. The source of right here would be religious autonomy. At the same time, I think hiring on religious grounds should count against an association in receiving public funds. As John DiIulio puts it, the difference between a faith based and a faith saturated organization is important. No public agency hires on religious grounds, and government can reasonably require that private agencies receiving public funds not employ religious conditions for their clients or their employees. On the other hand, although I think that establishment clause considerations should lead us away from subsidizing such organizations, I think those considerations should not be dispositive in all cases. Vouchers to religious schools should be permissible in some limited circumstances if appropriate criteria are met. For discussion, see Chapters 5 and 6 of (hot off the press), Shiffrin, The Religious Left and Church-State Relations, http://press.princeton.edu/titles/9088.html.