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.

Wednesday, September 16, 2015

Conscience claims by government officials

For those who have not grown weary of the debate over Kim Davis, I have an op-ed on the topic in today's Minneapolis Star Tribune.  I consider myself a strong supporter of the liberty of conscience, but I am troubled by her actions. Here's an excerpt:

I believe that our debates over conscience should focus on whether accommodating the claim of conscience would jeopardize access to a good or a service deemed essential (by the state) for full participation in society. Because of the importance of religious liberty and the unavoidable messiness of living in a world of moral conflict, I have objected when the state’s disregard of a provider’s claim of conscience appears to be animated by a desire to avoid potential affronts to a customer’s sense of dignity — for example, when the state penalizes a photo agency for refusing on religious grounds to shoot a same-sex wedding even though many other competent photographers are available. While I object to dignity-driven state prohibitions in the market for goods and services, an employer could legitimately decide that an employee’s conscience-driven refusal of service sends a message inconsistent with the moral claims embedded in the employer’s marketplace identity.

By the same token, the government should have some discretion to decide that its public officials must execute the full scope of the law and serve all members of the public legally entitled to a good or service. If the state of Kentucky wants to create an accommodation for Davis that still maintains full access to marriage for same-sex couples, I wouldn’t object. The problem is empowering Davis to decide on her own whether her denial of access is consistent with the public norms that the state wants to champion. If we value a vibrant moral marketplace, institutional actors, not just individual employees, must have a degree of discretion to shape their identities and messages within the marketplace. The government should have similar discretion.


Vischer, Rob | Permalink