By John Lomperis (@JohnLomperis)
When various levels of American government enact socially liberal policies, should they take care to also protect the consciences of religious groups and individual citizens who fundamentally oppose the values underlying such policies?
That was the topic of a panel at the American Academy of Religion (AAR), which met last fall in Chicago. The AAR is the national professional association for scholars of religious studies.
Such concerns have become increasingly prominent with recent state policies redefining marriage to include same-sex unions and the provisions of the controversial healthcare law which the Obama administration is using to force employers, including religious ones, to pay for contraception (opposed by faithful Catholics) as well as birth control methods that appear to work as abortifacents (and are therefore much more widely opposed). This policy is commonly known as the Health and Human Services (HHS) mandate.
Michael Kessler, Associate Director of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, made clear that he was a strong supporter of socially liberal policies, for the sake of maximizing individual liberty, and that he emphatically does not want “policy rooted in traditional morals.” He framed current tensions as social conservatives recognizing that they have lost certain policy debates, and so “clamor[ing] for exceptions to at least keep their faces from being rubbed in the dirt,” while social liberals distrust conscience protections as “provid[ing] cover for illiberal values,” which they see as unworthy of respect.
But Kessler challenged fellow progressives to be less dismissive, as government promotion of liberal values need not “deny certain exemptions to minority citizens.” He cited Timothy Cardinal Dolan, President of the U.S. Conference of Catholic Bishops, protesting that the HHS mandate “forces American citizens to choose between violating their own consciences or denying their own access to health care,” and Notre Dame President John Jenkins objecting to the Obama administration’s providing (alleged) exemptions for only exempt some religious organizations (i.e., houses of worship) but not others. Kessler speculated that President Obama’s “tone-deaf” initial handling of the HHS mandate was based on the miscalculation that its opponents would never vote for him anyway, but expressed optimism for how the administration may handle this in its second term.
A group of legal scholars has recently sent letters urging state legislatures crafting pro-same-sex-marriage policies to provide religious organizations, individuals and also small businesses (namely, wedding photographers and others providing marriage-related services) with protections against being forced to supportively participate in things they believe are immoral. However, according to Kessler, these letters also claim that social conservatives should not have their consciences protected if this would impose “a substantial hardship” on those seeking to live out socially liberal values, so the government should, for instance, force the only wedding photographer in town to service a same-sex wedding whether she wants to or not. Kessler admitted to where-do-you-draw-the-line difficulties with the “substantial burden” standard, such as the hypothetical case of a gay couple wanting to stay in a Christian-owned bed-and-breakfast that had a better view than comparably priced alternatives in the area.
While largely sympathetic to these letters’ conclusions, Kessler faulted them for focusing mainly on prudential and political reasons, rather than principled arguments. The Georgetown professor promoted “a robust progressive theory of conscience” that positions religious liberty as a core value for social liberals.
Contrarily, Stephen Edward McMillin, a doctoral student at the University of Chicago’s School of Social Service Administration, argued that “laissez fair conscience ‘protections’ risk more religious liberty than they protect.” He criticized “corporate conscience” protections for organizations, which he argued could have the practical effect of overruling the liberty of individuals. His example scenario was a faith-based hospital having a policy forbidding any of its employed doctors from performing abortions anywhere, which results in no abortions being done in another, pro-abortion hospital where the same doctors may be jointly employed, so that it becomes more of a hassle for parents to find somewhere to have their child killed.
During the question-and-answer time, I challenged McMillin’s pitting individual liberty against conscience protections, noting that as an individual purchaser of private health insurance, I would have no choice under the HHS mandate but to pay into a health insurance pool that subsidizes other people’s use of abortifacent birth control methods, since no insurance company would be allowed to offer me an alternative. McMillin responded by briefly dismissing the possibility of the HHS mandate covering abortifacents. He then quipped that liberals also don’t like paying taxes to fund military drones. This somewhat confusing response implies that there is no principled difference between taxes (which Christians are biblically obligated to pay) and personal financial transactions (like shopping for different health insurance options) in which individuals have traditionally had a great degree of choice.
The respondent was Thomas Berg, a law professor at the University of St. Thomas and a signatory of several of the aforementioned lobbying letters. Berg made clear his commitment to “allowing individuals to live their lives according to conscience in all areas of their life,” which underlies his support for same-sex “marriage” as well as for strong conscience protections for religiously informed individuals, nonprofits, and to a lesser extent, businesses, “and not just in a tightly cordoned private sector,” as he said the Obama administration has done with the HHS mandate. He also observed that liberal policies on redefining marriage can be politically easier to pass if they include explicit conscience protections for religious dissenters.
He summarized McMillin’s framing of conscience protections as social conservatives just seeking to “to get as much as they can” in the culture wars. While Berg would not “let conservatives off the hook,” he defended freedom of conscience for all as a good principle nonetheless. Challenging McMillin’s sweeping attack on conscience protections for organizations, Berg pointed out that “organizations, like individuals” can be hurt when forced into violating their fundamental mission. He asked if McMillin would support forcing the Archdiocese of Chicago (also an organization) to be forced to pay for employees’ abortions. Berg affirmed McMillin’s concern over barriers being effectively imposed on those who do not share the values of those covered by conscience protections. But Berg urged “everybody wins” solutions in which people can go elsewhere for services to which some potential providers may morally object.
This discussion would have been greatly enhanced if the speakers, particularly McMillan, had more clearly acknowledged the contestable assumptions underlying leftist discourse on conscience protections, such as that unborn individuals have no rights worthy of consideration and that elective abortion is an absolute positive good which the government is obliged to not only keep legal, but actively promote its convenient availability. While American attitudes about premarital sex and homosexuality have been liberalizing over the years the same is not true on the issue of abortion. So it was highly misleading to lump all these issues together under “American social attitudes,” as this panel did.
Still, it was refreshing to see liberal scholars such as Kessler and Berg make thoughtful defenses of the liberty of those of us who disagree with them. Nevertheless, the disturbingly vague “unreasonable burden” limit to liberal-supported conscience protections is yet another reason why social conservatives cannot trust libertarian rhetoric that socially liberal policies will not hurt them personally.