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.

Tuesday, December 8, 2009

More on Cathy Kaveny's Argument (c) re. Conscience

I'd like to second Bob Hockett in arguing that there's more to what Cathy labels argument (c) for accommodation of conscience than she gives it credit.  Cathy writes:

c. You could make an analogy to the Americans with Disabilities Act. You could say, "we have an objection to performing an act which is not an essential act of the job, and you should treat it like a moral disability--make reasonable accommodation."  This would get you coverage for the pharmacists, and most doctors--not OB/GYNS, probably. And people would have to admit their moral beliefs were a disability--that's a huge problem.

It seems to me that this conflates two analogies, or two components in the analogy, to disability/ADA.  One is the use of "reasonable accommodation" as the governing standard for conscienctious-objection claims as for disability claims.  The other is the use of disability as the analogy for why conscientious objections should be accommodated in the first place.  One can appeal to "reasonable accommodation" as a good standard for handling these cases (analogy #1) without thereby committing oneself to saying that the only normative ground for treating conscience as worthy of accommodation is that it's a disability (analogy #2, which Cathy finds "a huge problem").

"Reasonable accommodation" as a standard is simply the method of giving weight to a claim for accommodation (disability or conscience) but not absolute weight over other interests.  In this context, as Bob observed, it means something like, "Make accommodation unless the objection is to a substantial or essential element of the job" (as perhaps carrying a weapon is to policing, while performing abortions is not to medicine).  But the reasons why conscience is worthy of being accommodated are hardly limited to (although they might include) "conscience is like a disability."  The multiple reasons for accommodating conscience can include (i) the idea that it's at least partly involuntary ("I can do no other," which is sort of analogous to disability); but also (ii) people suffer particularly severely when pressured to give up or violate their conscience, especially religious conscience, because of the pervasiveness of religion to personal identity; and (iii) respecting conscience is an important way for the state to acknowledge its limited status.  (There are likely other reasons; and this is to say nothing of Cathy's argument (d), that the particular conscientious objection may be a reminder of a value that society wants to affirm even if it doesn't agree that the particular objection necessarily reflects that value.)

Whatever you think of arguments (ii) and (iii) above, the point is they are independent of the disability analogy.  But they might show that conscience is presumptively worth accommodating, and that we should draw on the disability standard as a workable one for calibrating the competing interests.


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