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.

Sunday, December 6, 2009

"Fear-mongering" and conscience protection

So, Michael, let me get this straight.  Chip Lupu accuses me and others of "fear-mongering," thus explicitly impugning our motives, without giving the slightest bit of evidence for the alleged insincerity of our expression of concerns about possible impositions on conscience. You quote him and then say:  "Chip Lupu is a highly respected religious liberty scholar.  If he is wrong -- as Robby asserts -- why is he wrong?"  Well, what would you consider valid evidence that Chip is wrong in suggesting (which I assume he is, with this talk about "fear-mongering") that there is no threat to conscience protection for medical professionals who, for example, object to being compelled to refer for, participate in, or perform abortions?  What if there existed a Report of the Committee on Ethics (let's call it Opinion 385--entitled Limits of Conscientious Refusal in Reproductive Medicine) of, say, an influential professional association in the field of women's health (perhaps it could be called the American College of Obstetricians and Gynecologists), that proposed a formal obligation of doctors to refer for abortions and in certain "emergency" situations (not defined, but possibly including circumstances in which no other physician is available in an area to provide an elective abortion) to perform abortions even against their pro-life moral convictions?  Would that be pretty good evidence?  Then what if we found that there are respected scholars in philosophy, law, medicine and other fields who not only support this imposition of obligation on physicians, but in some cases argue that it does not go far enough in protecting a woman's right to abortion?  What if there were mainstream liberal academics writing in important academic journals who said that even the limited conscience protections proposed by the ACOG constituted an imposition of the morality of the physician on a woman who wants an abortion?  Would that be pretty good evidence that there are reasons for pro-life people to be concerned and vigilant?  Then what if we learned that there are cases in places like the state of Washington in which the right of pro-life pharmacists to decline to dispense abortifacient drugs was under attack?  Then what if we learned that eleven nurses in Alabama in 2004 resigned their positions rather than bend to a requirement that they provide abortifacients?  Then what if we learned that a nurse in Louisiana was fired for refusing to administer an abortifacient?  Then what if we learned that a pro-life Catholic nurse in New York was forced under a threat of disciplinary action and possible termination of employment to participate in a late-term abortion -- the child was twenty-two weeks along in development.  Then what if we found that the right of Catholic hospitals to decline to give privileges to physicians who perform abortions was being legally challenged?  I could multiply the examples, but instead let me just refer you to the following websites of organizations that defend religious liberty and freedom of conscience:  http://www.becketfund.org/; http://aclj.org/; http://www.clsnet.org/; http://www.alliancedefensefund.org/main/default.aspx.  Fear-mongering?  Hardly.  In light of the evidence, one would be a great deal more justified in suspecting that people who try to dismiss concerns about threats to conscience as "fear-mongering" are the ones who are in less than perfectly good faith.  As for concerns for religious liberty growing out of the legal recognition of same-sex sexual partnerships as marriages, the letter you joined in sending to the New Jersey legislature wouldn't be necessary if no serious dangers for religious liberty existed.  Whether the protections you and your colleagues propose for protecting religious liberty if you get your way about re-defining marriage would be adequate, is a debatable proposition.  It is clear to me from what has happened in Massachusetts and elsehwere that once marriage is re-defined there will inevitably be burdens on the liberty of those of us who dissent.  Schools, for example, will present marriage as a union of two persons irrespective of whether they are of opposite sexes or the same sex.  Parents who don't want such beliefs to be inculcated in their children as part of the package you accept when you send your children to public school, will be out of luck.  After all, how could it be otherwise?  If a certain form of relationship is a "marriage" under state law, then most people will agree that there is no alternative to schools teaching that whenever they teach about marriage (as in family life curricula).  So this is an area where no possibility of neutrality exists. Someone's view is going to be taught, i.e., the view of the side that prevails on the issue of how marriage is to be legally defined, and religious liberty protections won't be viable.  And there are other such areas.  Whether even the religious liberty and conscience protections you and your colleagues support would hold for very long even if they were accepted (as they may be in some places as part of a deal to get the re-definition of marriage through the legislature) is also debatable.  As to whether a majority of your liberal colleagues in the legal academy and beyond would support your proposed protections, I seriously doubt it (though, again, some might accept them, at least in the short term, as part of a deal).  Just this week I was present at a meeting at which a strong and very capable defender of your position came under severe attack in defending the kinds of protections you propose from a highly credentialed advocate of redefining marriage who teaches at one of the top law schools in the United States.  I have no doubt that had the matter dividing the two scholars been put to a vote of the faculty of the law school of either interlocutor, the decision would have gone overwhelmingly for the critic of the conscience protections being proposed.  That should not be surprising.  The overwhelming majority are liberals.  It has become a matter of orthodoxy in the liberal camp that opposition to same-sex marriage is a form of bigotry, on a par with opposition to interracial marriages.  (Honestly, now, how many liberals do you know who don't believe that the analogy is valid?)  Now, if opponents of re-defining marriage are just like racists, why should they not be treated the way we treat racists?  We don't put racists in jail, but we stigmatize them and marginalize them and impose on them, where we can, legal disabilities in a wide variety of areas.  If clergy or public officials who refuse to officiate at same-sex ceremonies are just like clergy or public officials who refuse to officiate at interracial wedding ceremonies, why should they retain the right to act on behalf of the state in validating marriages?  Lots of liberals I know think they shouldn't have that right.  They should have to give it up.  Sure, bigoted clergy who refuse to perform same-sex ceremonies can continue performing religious ceremonies for opposite sex couples only, if they like--that is protected by the First Amendment.  But their right to act as agents of the state ("by the power vested in me by the state of Michigan, I now pronounce you , , , "), many liberals will point out, certainly isn't.  Assuming that belief in marriage as the conjugal union of sexually complementary spouses is a species of prejudice, and that refusing to serve opposite sex couples who request one's services is therefore a form of invidious discrimination, they have a pretty darn good argument.  As you know, Chai Feldblum of Georgetown Law School, has been nominated by President Obama for a seat on the Equal Employment Opportunity Commission.  She is not a marginal figure.  Her views are scarcely regarded by her academic colleagues or the Obama administration as outside the mainstream. Before her nomination, she commented on the public record about the multitude of cases in which she, like your co-author Marc Stern, saw conflict coming between gay rights and religious liberty.  With exemplary candor, Professor Feldblum said something that anybody who cares about conscience and religious liberty should take very seriously -- even at the risk of being labeled a "fear-monger" by liberal law professors in newspapers like the New York Times.  "I'm having a hard time," she said, "in coming up with any case in which religious liberty should win." 


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