Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism

The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & MIchel Rosenfeld eds., Cambridge Univ. Press 2018, Forthcoming)

UCLA School of Law Research Paper No. 16-02

Yale Law School, Public Law Research Paper No. 561

47 Pages Posted: 13 Jan 2016 Last revised: 20 Jan 2018

Douglas NeJaime

Yale University - Law School

Reva Siegel

Yale University - Law School ; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: January 20, 2018

Abstract

Opponents of contraception, abortion, and same-sex relationships now seek religious exemptions from laws protecting the practices. This essay examines the spread of these culture-war conscience claims in the United States and across borders. After surveying the spread of these new religious liberty claims, and sampling the laws’ nascent response, we offer a pluralism-respecting framework for engaging with claims of this kind.

Religious liberty claims are proliferating in the culture-wars context. After the U.S. Supreme Court’s decision in Obergefell v. Hodges recognizing same-sex couples’ right to marry, government officials objected to marrying same-sex couples on religious liberty grounds. Businesses, too, have objected to providing same-sex couples goods and services on grounds that doing so would make them complicit in relationships they deem sinful. For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a baker refused to provide a wedding cake to a same-sex couple.

These claims echo conscience claims asserted by those who object to providing or becoming complicit in the provision of healthcare that includes abortion or contraception. In Burwell v. Hobby Lobby Stores, employers objected to regulations that required them to provide employees with health insurance that included coverage for contraception. Opponents of abortion and contraception continue to assert religious liberty claims in the healthcare context, illustrated by Zubik v. Burwell as well as the Trump Administration’s recent regulations exempting employers from providing contraceptive coverage to employees.

Similar claims of conscience and religious liberty are appearing in Europe. Conscience claims in healthcare abound, although the breadth and structure of accommodations vary widely across borders. In the LGBT context, government officials have begun to object to conducting marriages or civil partnerships — as with the registrar’s claim in Eweida and Others v. United Kingdom. And businesses — from innkeepers in in Bull v. Hall to bakers in Lee v. Ashers Baking — have objected to facilitating or endorsing conduct they deem sinful.

These religious liberty claims differ in form from traditional claims seeking the accommodation of religious dress or ritual. When a person of faith seeks an exemption from legal duties to another in the belief that the citizens the law protects are sinning, granting the religious exemption can inflict material and dignitary harms on those whom the law protects. Complicity-based conscience claims, which have proliferated in conflicts over reproductive rights and LGBT equality, raise special concerns with third-party harm and threaten to undermine a workable system of religious accommodation. Employing cross-borders comparisons to illustrate, we argue that religious accommodation of claims arising in culture-war contexts serves pluralist ends only when the accommodation is structured to shield other citizens from harm.

Keywords: religious liberty, accommodation, exemptions, religous freedom, Hobby Lobby, Zubik, Eweida, transnational, comparative, reproductive rights, LGBT equality, abortion, contraception, same-sex marriage

Suggested Citation

NeJaime, Douglas and Siegel, Reva B., Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism (January 20, 2018). The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & MIchel Rosenfeld eds., Cambridge Univ. Press 2018, Forthcoming); UCLA School of Law Research Paper No. 16-02; Yale Law School, Public Law Research Paper No. 561. Available at SSRN: https://ssrn.com/abstract=2714017

Douglas NeJaime (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Reva B. Siegel

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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