The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & MIchel Rosenfeld eds., Cambridge Univ. Press 2017, Forthcoming)
24 Pages Posted: 13 Jan 2016 Last revised: 1 Jul 2016
Date Written: January 1, 2016
Those who believe contraception, abortion, and same-sex relationships are sinful are increasingly seeking religious exemptions from laws protecting these practices. This essay examines the spread of these culture-war conscience claims in the United States and across borders.
In the wake of the U.S. Supreme Court’s decision in Obergefell v. Hodges recognizing same-sex couples’ right to marry, government officials have objected to marrying same-sex couples and businesses have objected to providing them goods and services. Opponents of abortion and contraception have also turned to claims of conscience and religious liberty in challenging the Affordable Care Act, as the Court’s recent decisions in Burwell v. Hobby Lobby Stores and Zubik v. Burwell illustrate.
Similar claims of conscience and religious liberty are appearing in Europe. These may involve objections to direct participation in the performance of abortion; or they may involve objections to complicity in the sins of another — for example, to laws that oblige the objector to refer for abortion or to sell contraception. In the LGBT context, there are analogous conscience claims involving direct participation conducting marriages or civil partnerships — as with the government registrar’s objection in Eweida and Others v. United Kingdom — or complicity in another’s sinful conduct — as with the innkeepers’ objection to renting a double-bed room to a same-sex couple in Bull v. Hall.
Religious liberty claims asserted in these culture-war contexts differ from claims for the accommodation of religious ritual observance in ways that warrant principled legal response. 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: Suggested Citation
NeJaime, Douglas and Siegel, Reva, Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism (January 1, 2016). The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & MIchel Rosenfeld eds., Cambridge Univ. Press 2017, 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
By Steven Smith